The State: Elements of Historical and Practical Politics (2024)

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{{Template}}The State: Elements of Historical and Practical Politics (1889) is a book by Woodrow Wilson.

PREFACE.

THE Scope and plan of this volume are, I trust, self-evident;but a word or two of comment and suggestion may be useful tothose who shall use the book in class instruction . In preparingit I labored under the disadvantage of having no model. So faras I was able to ascertain, no text-book of like scope and purposehad hitherto been attempted . I was obliged, therefore, to put agreat deal into this volume that I might have omitted had therebeen other compact and easily accessible statements of the detailsof modern governmental machinery. Had there been other booksto which the student might easily resort for additional information, I should have confined myself much more than I have feltat liberty to do to the discussion of general principles and theelaboration of parallels or contrasts between different systems.As it was, I saw no way of doing adequately the work I hadplanned without making this a book of facts.The volume, as a consequence, is very large. Realizing this, Ihave put a great deal of matter, containing minor details andmost of my illustrations and parallels, into small print, in orderthat any part of such matter that the teacher saw fit to omit inclass work might be omitted without breaking the continuityof the text. At the same time, the small print paragraphs areintegral parts of the text, not separated from it as foot-noteswould be, but running along with it as continuously as if theywere in no way distinguished from the main body of it.In the historical portions I have been greatly straitened forspace, and must depend upon the active and intelligent assistanceof the teacher. Picking out governmental facts, as I have done,from the body of political history, and taking for granted on thepart of the reader a knowledge of the full historical setting ofthe facts I have used, I have, of course, been conscious of relyingxxxiiixxxiv PREFACE.upon the teacher who uses the volume to make that assumptiongood as regards his own pupils. Large as the book is, it willrequire much supplement in the using. I trust that it will onthat account prove sufficiently stimulating to both pupil andteacher to make good its claim to be the right sort of a text- book.The governments I have chosen for description were selectedas types of their several kinds. A knowledge of the constitutions of the states of classical antiquity must always go beforea study of modern politics; the government of France servesexcellently as an example of a unitary government of one kind,and Great Britain equally well as an example of a unitary government of another kind; Germany exhibits a federal empire,Switzerland a federal republic of one sort, the United States afederal republic of another; Austria-Hungary and Sweden-Norwayshow the only two existing European types of dual monarchies.Russia no doubt has a place apart in European politics, anddeserved a chapter in such a survey as I have here undertaken;but I could not in conscience make the volume any bigger. Eventwo volumes like this could hardly contain the chapters thatmight be written about the various administrative and constitutional arrangements to be found in Europe.In hoping that the book will be acceptable to teachers I haverelied upon that interest in comparative politics which has beenso much stimulated in the English- speaking world in very recentyears. I have meant that it should be in time to enter the doorsof instruction now in all directions being opened wider and widerin American colleges to a thorough study of political science. Ibelieve that our own institutions can be understood and appreciated only by those who know other systems of government aswell, and the main facts of general institutional history. By theuse of a thorough comparative and historical method, moreover,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 thanthe uninitiated student of institutions is at all prepared to find, -will appear, to the upsetting of many pet theories as to the specialexcellencies of some one system of government. Such correspondences having been noted, it will be the easier to trace thePREFACE. XXXVdifferences which disclose themselves to their true sources inhistory and national character. The differences are in manyinstances nation-marks; the correspondences speak often of common experiences bringing common lessons, often of universalrules of convenience, sometimes of imitation . Certainly it doesnot now have to be argued that the only thorough method ofstudy in politics is the comparative and historical. I need notexplain or justify the purpose of this volume, therefore: I needonly ask indulgence for its faults of execution.The work upon which I have chiefly relied in describing moderngovernments is the great Handbuch des oeffentlichen Rechts derGegenwart, edited by the late Professor Heinrich Marquardsenof the University of Erlangen. This invaluable collection ofmonographs on the public law of modern states, which began toappear in 1883, is almost complete. In most cases it embodiesthe latest authoritative expositions of my subjects accessible tome, and I have used it constantly in my preparation of thiswork.To some of my friends I am under special obligations, of whichI gladly make grateful acknowledgment, for that most self-sacrificing of services, the critical reading of portions of my manuscript. This kindness was extended to me by Professor HerbertB. Adams and Dr. J. M. Vincent of Johns Hopkins University,Professor J. F. Jameson of Brown University, and ProfessorMunroe Smith of Columbia College. To these gentlemen I makemy public acknowledgments, together with my public condolences,for their connection with this work. I am sure that they areresponsible for none of its inaccuracies and for many of its excellences.MIDDLETOWN, CONN. ,August 8, 1889.PRINCETON, N.J. ,March 31, 1897.WOODROW WILSON.142198 - #38(I.THE EARLIEST FORMS OF GOVERNMENT.1. Nature of the Question.- The probable origin of government is a question of fact, to be settled, not by conjecture, butby history. Some traces we can still discern of the history ofprimitive societies . As fragments of primitive animals havebeen kept for us sealed up in the earth's rocks, so fragmentsof primitive institutions have been preserved, embedded in therocks of surviving law or custom, mixed up with the rubbish ofaccumulated tradition, crystallized in the organization of stillsavage tribes, or kept curiously in the museum of fact and rumorswept together by some ancient historian. Limited and perplexing as such means of reconstructing history may be, they repaypatient comparison and analysis as richly as do the materials ofthe archæologist and the philologian. The facts as to the originand early history of government are at least as available as thefacts concerning the growth and kinship of languages or thegenesis and development of the arts and sciences. Such lightas we can get from the knowledge of the infancy of society thusmeagrely afforded us is, at any rate, better than that derivedfrom a priori speculations founded upon our acquaintance withour modern selves, or from any fancies, how learnedly soeverconstructed, that we might weave as to the way in which historymight plausibly be read backwards.2. Races to be studied: the Aryans. For purposes of widestcomparison in tracing the development of government it wouldof course be desirable to include in a study of early society notonly those Aryan and Semitic races which have played the chiefparts in the history of the European world, but also every primitive tribe, whether Hottentot or Iroquois, Finn or Turk, of whose 12 THE EARLIEST FORMS OF GOVERNMENT.institutions and development we know anything at all . Such aworld-wide survey would be necessary to any induction whichshould claim to trace government in all its forms to a commonarchetype. But, practically, no such sweeping together of incongruous savage usage and tradition is needed to construct a safetext from which to study the governments that have grown andcome to full flower in the political world to which we belong.In order to trace the lineage of the European and Americangovernments which have constituted the order of social life forthose stronger and nobler races which have made the most notable progress in civilization, it is essential to know the politicalhistory of the Greeks, the Latins, the Teutons, and the Celtsprincipally, if not only, and the original political habits andideas of the Aryan and Semitic races alone. The existing governments of Europe and America furnish the dominating typesof to-day. To know other systems which are defeated or deadwould aid only indirectly towards an understanding of thosewhich are alive and triumphant.3. Semitic and Turanian Instance. Even Semitic institutions,indeed, must occupy only a secondary place in such inquiries.The main stocks of modern European forms of government areAryan. The institutional history of Semitic or Turanian peoplesis hardly part of the history of European governments: it is onlyanalogous to it in many of the earlier stages of development.Aryan, Semitic, and Turanian races alike seem to have passedat 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 mostsuccessfully survived the wreck of change, of probable earlyforms and possible successive stages of political life among theothers. Aryan practice may often be freed from doubt bySemitic or Turanian instance; but it is Aryan practice we principally wish to know.4. Government rested First upon Kinship. - What is known ofthe central nations of history clearly reveals the fact that socialorganization, and consequently government (which is the visibleform of social organization) , originated in kinship. The originalbond of union and the original sanction for magisterial authorityTHE EARLIEST FORMS OF GOVERNMENT. 3were one and the same thing, namely, real or feigned blood - relationship. In other words, families were the original units ofsocial organization; and were at first, no doubt, in a large degreeseparate. The man and his wife and offspring lived generallyapart. It was only by slow stages and under the influence ofmany changes of habit and environment that the family organization widened and families were drawn together into communities. A group of men who considered themselves in some sortkinsmen constituted the first State.5. Early History of the Family; was it originally Patriarchal?-The origin of government is, therefore, intimately connectedwith the early history of the family. It is the more unfortunatethat the conclusions to be drawn from what is known of thebeginnings of the family should furnish matter for much modern.difference of opinion . This difference of opinion may be definitely summed up in the two following contrasted views: -(1) That the patriarchal family, to which the early history ofthe greater races runs back, and with which that history seemsto begin, was the family in its original estate, the original, thetrue archaic family.The patriarchal family is that in which descent is traced to a commonmale ancestor, through a direct male line, and in which the authority ofrule vests in the eldest living male ascendant.(2) That the patriarchal family, which is acknowledged to befound in one stage or another of the development of almost everyrace now civilized, was a developed and comparatively late formof the family, and not its first form, having been evolved throughvarious stages and varieties of polyandry ( plurality of husbands)and of polygyny (plurality of wives) out of a possibly originalstate of promiscuity and utter confusion in the relations of thesexes and of consequent confusion in blood- relationship and inthe government of offspring.In brief, it is held on the one hand that the patriarchal familywas the original family; and on the other, that it was not theoriginal but a derived form, others of a less distinct organizationpreceding it.6. The Evidence. It is of course impracticable to set forth4 THE EARLIEST FORMS OF GOVERNMENT.here the miscellaneous evidence which has been swept togetherconcerning so very obscure and complex a question . Suffice itto say that among many primitive races cases abound of thereckoning of kinship through mothers only, as if in matter- ofcourse doubt as to paternity; of consanguinity signified throughout the wide circle of a tribe, not by real or supposed commondescent from a human ancestor, but by means of the fiction ofcommon descent from some bird or beast, from which the tribetakes its name, as if for lack of any better means of determiningcommon blood; of marriages of brothers with sisters, and ofgroups of men with groups of women, or of groups of men withsome one woman. In the case of some tribes, moreover, amongwhom polygamy or even monogamy now exists, together with apatriarchal discipline, it is thought to be possible to trace clearindications of an evolution of these more civilized forms of familyorganization from earlier practices of loose multiple marriagesor even still earlier promiscuity in the sexual relation.The peoples, however, among whom such confusions of sexualrelationships have been observed are not those who have emergedupon the European field . Among almost every European folkthere is clear, unbroken tradition running back to a patriarchalpower and organization. Roman law, that prolific mother ofmodern legal idea and practice, bears impressed upon everyfeature of it indubitable marks of its descent from a time whenthe father ruled as king and high priest in the family. Greekinstitutions speak hardly less unequivocally of a similar derivation. No belief is more deeply fixed in the traditions of thegreat peoples who have made modern history than the belief ofdirect common descent, through males, from a common maleancestor, human or divine; and nothing could well be morenumerous or distinct than the traces inhering in the very heartof their polity of an original patriarchal organization of thefamily as the archetype of their political order.7. The Warrantable Conclusion. The evidence of more confused marriage relationships, moreover, is nowhere of such acharacter as to warrant the conclusion that promiscuity in sexualconnections has among any people marked the first or any regularstage of social development. " All the evidence we possess tendsTHE EARLIEST FORMS OF GOVERNMENT. 51to show that among our earliest human ancestors the family, notthe tribe, formed the nucleus of every social group, and, in manycases, was itself perhaps the only social group. " " It seemsprobable, moreover, that monogamy prevailed almost exclusivelyamong our earliest human ancestors. " Promiscuity belongs,not to the most primitive times or to the regular order of sociallife, but rather to exceptional seasons of demoralization or confusion; to times of decadence rather than to the origins of therace. Polyandry has grown up only where the women were fewerthan the men, and has almost necessarily broken down when thenumerical balance between the sexes was restored . Polygyny"has been less prevalent at the lowest stages of civilization , -where wars do not seriously disturb the proportion of the sexes;where life is chiefly supported by hunting, and female labor isconsequently of slight value; where there is no accumulation ofwealth and no distinction of class, — than it is at somewhat higherstages. " Where it does exist, it is invariably confined to asmall minority of wealthy and powerful men; the majority, fromchoice or necessity, are always monogamous. First and last, thestrong monogamous instinct, which man shares with all thehigher orders of beasts, has tended to exclude promiscuous ormultiplied sexual connections, and to build up a distinct familyorder round about monogamous marriages.2The efficient races who have dominated the European stage, atany rate, came into their place of leadership and advantage underthe discipline of the patriarchal order of family life. Whetherwith several wives or with only one, the father was chief andmaster among them, and the family showed that clear authorityand close organization which was to serve in fulness of time asthe prototype and model for the State.8. From the Patriarchal Family to the State. Among theseAryan peoples there was first the family ruled by the father asking and priest. There was no majority for the sons so long astheir father lived . They might marry and have children, butthey could have no entirely separate and independent authorityduring their father's life save such as he suffered them to exer1 Westermarck, History of Human Marriage, pp. 538 , 549.2 Id. , 548.6 THE EARLIEST FORMS OF GOVERNMENT.cise. All that they possessed, their lives even and the lives ofthose dependent upon them, were at the disposal of this absolute father- sovereign . Such a group naturally broadens in timeinto the ' House, ' or gens, and over this too a chief kinsman rules.There are common religious rites and observances which the gensregards as symbolic of its unity as a composite family; and headsof houses exercise many high representative and probably someimperative magisterial functions by virtue of their position .Then, as the social order widens, Houses are in their turnabsorbed. The first distinctively political unit, no doubt, wasthe Tribe: broader than the gens and tending to subordinate it;a body in which kinship must still have been deemed the bondof union, but in which, nevertheless, it must have been a veryobscure bond indeed, and in which family rights must steadilyhave tended to give way before the establishment of a commonorder within which the House served only as a unit of membership and a corporation for worship.Tribes at length united to form a State. In days of nomadichabit the organization of the Tribe sufficed, and no more fixed,definite, or effective order was attempted. But when a people'stravelling days were over, a settled life brought new needs oforganization: a larger power must have sprung up almost ofitself. Then a very significant thing happened. The State ineffect ousted both the House and the Tribe from their functionsas political units, and came itself to rest, not upon these forfoundation , but upon the family, the original formation of thesocial substructure. Tribe and gens served henceforth only asreligious corporations or as the convenient units of representation in the action of the State.9. Prepossessions to be put away. In looking back to the firststages of political development, it is necessary to put away fromthe mind certain prepossessions which are both proper and legitimate to modern conceptions of government, but which can havefound no place in primitive thought on the subject. It is notpossible nowadays to understand the early history of institutionswithout thus first divesting the mind of many conceptions mostnatural and apparently most necessary to it. The centuries whichseparate us from the infancy of society separate us also, by theTHE EARLIEST FORMS OF GOVERNMENT. 7whole length of the history of human thought, from the ideas intowhich the fathers of the race were born; and nothing but a mostcredulous movement of the imagination can enable the student ofto-day to throw himself back into those conceptions of social connection and authority in which government took its rise.10. The State and the Land. - Howis it possible, for instance, forthe modern mind to conceive distinctly a travelling political organization, a State without territorial boundaries or the need of them,composed of persons, but associated with no fixed or certain habitat? Andyet such were the early tribal states, - nomadic groups,now and again hunting, fishing, or tending their herds by this orthat particular river or upon this or that familiar mountain slopeor inland seashore, but never regarding themselves or regarded bytheir neighbors as finally identified with any definite territory.Historians have pointed out the abundant evidences of these factsthat are to be found in the history of Europe no further back thanthe fifth century of our own era. The Franks came pouring intothe Roman empire just because they had had no idea theretoforeof being confined to any particular Frank-land. They left noFrance behind them at the sources of the Rhine; and their kingsquitted those earlier seats of their race, not as kings of France,but as kings of the Franks. There were kings of the Frankswhen the territory now called Germany, as well as that nowknown 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 confiningthemselves to a single land. Drawn by the processes of feudalization (secs. 313, 323, 351 , 352), sovereignty then found at last alocal habitation and a name.11. The same was true of the other Germanic nations. Theyalso had chiefs who were the chiefs of people, not the chiefs oflands. There were kings of the English for many a year, evenfor several centuries after A.D. 449, before there was such a thingas a king of England. John was the first officially to assume thelatter title. From the first, it is true, social organization haseverywhere tended to connect itself more and more intimatelywith the land from which each social group has drawn its sustenance. When the migratory life was over, especially, and the8 THE EARLIEST FORMS OF GOVERNMENT.settled occupations of agriculture had brought men to a standupon the land which they were learning to till, political life,like all the other communal activities, came to be associatedmore and more directly with the land on which each communitylived . But such a connection between lordship and land was aslowly developed notion, not a notion twin-born with the notion ofgovernment.12. Modern definitions of a State always limit sovereignty tosome definite land. " A State " runs the modern definition-"is a People organized for law within a definite territory. " Butthe first builders of government would not have found such adefinition intelligible. They could not have understood whythey might not move their whole people, ' bag and baggage,' toother lands, or why, for the matter of that, they might not keepthem moving their tents and possessions unrestingly from placeto place in perpetual migration, without in the least disturbingthe integrity or even the administration of their infant ' State.'Each organized group of men had other means of knowing theirunity than mere neighborhood to one another; other means ofdistinguishing themselves from similar groups of men than distance or the intervention of mountain or stream. The originalgovernments were knit together by bonds closer than those ofgeography, more real than the bonds of mere contiguity. Theywere bound together by real or assumed kinship. They had acorporate existence which they regarded as inhering in theirblood and as expressed in all their daily relations with eachother. They lived together because of these relations; they werenot related because they lived together.13. Contract versus Status. Scarcely less necessary to modernthought than the idea of territoriality as connected with the existence of a State, is the idea of contract as determining the relationsof individuals. And yet this idea, too, must be put away if wewould understand primitive society. In that society men wereborn into the station and the part they were to have throughoutlife, as they still are among the peoples who preserve their earliestconceptions of social order. This is known as the law of status.It is not a matter of choice or of voluntary arrangement in whatrelations men shall stand towards each other as individuals. HeConscious action belongsTranced shago ·to anTHE EARLIEST FORMS OF GOVERNMENT. 9who 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 parentage;aptitude is suffered to operate only within the sphere of eachman's birthright. No man may lose ' caste ' without losingrespectability 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 alliancewhich will in the least degree draw him away from the familyalliance and duty into which he was born. There is no thoughtof contract. Every man's career is determined for him beforehis birth. His blood makes his life. To break away from one'sbirth station, under such a system, is to make breach not only ofsocial, but also of religious duty, and to bring upon oneself thecurses of men and gods. Primitive society rested, not upon contract, but upon status. Status had to be broken through by someconscious or unconscious revolution before so much as the ideaof contract could arise; and when that idea did arise, change andvariety were assured. Change of the existing social order wasthe last thing of which the primitive community dreamed; andthose races which allowed the rule of status to harden about theirlives still stand where they stood a thousand years ago. "Theleaving of men to have their careers determined by their efficiencies," says Mr. Spencer, " we may call the principle of change insocial organization. "--14. Theories concerning the Origin of the State: the ContractTheory. Such views of primitive society furnish us with destructive dissolvents of certain theories once of almost universal vogueas to the origin of government. The most famous, and for ourpresent purposes most important, of these theories is that whichascribes the origin of government to a ' social compact ' amongprimitive men.The most notable names connected with this theory as used to accountfor the existence of political society are the names of Hooker, Hobbes,Locke, and Rousseau. It is to be found developed in Hooker's Ecclesiastical Polity, Hobbes' Leviathan, Locke's Civil Government, and Rousseau'sThe Social Contract.10 THE EARLIEST FORMS OF GOVERNMENT.This theory begins always with the assumption that there exists,outside of and above the laws of men, a Law of Nature.¹ Hobbesconceived 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 towhich human law should conform. Into this Law primitive menwere born. It was binding upon their individual consciences; buttheir consciences were overwhelmed by individual pride, ambition, desire, and passion, which were strong enough to abrogateNature's Law. That Law, besides, did not bind men together. Itsdictates, if obeyed, would indeed enable them to live tolerablywith one another; but its dictates were not obeyed; and, even ifthey had been, would have furnished no permanent frame of civilgovernment, inasmuch as they did not sanction magistracies, thesetting of some men to be judges of the duty and conduct of othermen, but left each conscience to command absolutely the conductof the individual. In the language of the judicious Hooker,'the laws of Nature " do bind men absolutely, even as they aremen, although they have never any settled fellowship, never anysolemn agreement, amongst themselves what to do or not to do;but forasmuch as we are not by ourselves sufficient to furnishourselves with competent store of things needful for such a lifeas our Nature doth desire, a life fit for the dignity of man, therefore to supply these defects and imperfections which are in usliving single and solely by ourselves, we are naturally induced toseek communion and fellowship with others. This was the causeof men uniting themselves at first in politic societies. " " In otherwords, the belligerent, non-social parts of man's character wereoriginally too strong for this Law of Nature, and the ' state ofnature,' in which that Law, and only that Law, offered restraintto the selfish passions, became practically a state of war, and consequently intolerable. It was brought to an end in the only wayin which such a condition of affairs could be brought to an endwithout mutual extermination, namely, by common consent, bymen's " agreeing together mutually to enter into one community1 For the natural history of this conception of a Law of Nature, see Maine,Ancient Law, Chap. III. Also post, secs. 269–271.2 Ecclesiastical Polity, Book I. , sec. 10.THE EARLIEST FORMS OF GOVERNMENT. 11and make one body politic . " (Locke. ) This agreement meant submission to some one common authority, which should judge betweenman and man; the surrender on the part of each man of all rightsantagonistic to the rights of others; forbearance and coöperation .Locke confidently affirmed "that all men are naturally in thatstate [ a state, i.e. , of nature ], and remain so till, by their ownconsents, they make themselves members of some politic society. "It was only as the result of deliberate choice, in the presence ofthe possible alternative of continuing in this state of nature, thatcommonwealths came into being.15. Traditions of an Original Lawgiver. - Ancient traditionhad another way of accounting for the origin of laws and institutions . The thought of almost every nation of antiquity went backto some single lawgiver at whose hands their government hadtaken its essential and characteristic form, if not its beginning.There was a Moses in the background of many a history besidesthat of the Jews. In the East there was Menu; Crete had herMinos; Athens her Solon; Sparta her Lycurgus; Rome herNuma; England her Alfred. These names do not indeed inevery instance stand so far back as the beginning of government;but they do carry the mind back in almost every case to the birthof national systems, and suggest the overshadowing influence ofindividual statesmen as the creative power in framing the greatercombinations of politics . They bring the conception of consciouschoice into the history of institutions. They look upon systemsas made, rather than as developed.16. Theory of the Divine Origin of the State. Not altogetherunlike these ancient conceptions of lawgivers towering aboveother men in wisdom and authority, dominating political construction, and possibly inspired by divine suggestion, is that moremodern idea which attributes human government to the immediate institution of God himself, to the direct mandate of theCreator. This theory has taken either the definite form of regarding human rulers as the direct vicegerents of God, or the vagueform of regarding government as in some way given to man aspart of his original make-up.17. The Theories and the Facts. - Modern research into theearly history of mankind has made it possible to reconstruct,12 THE EARLIEST FORMS OF GOVERNMENT.in outline, much of the thought and practice of primitive society,and has thus revealed facts which render it impossible for us toaccept any of these views as adequately explaining what theyseek to explain. The defects of the social compact theory are tooplain to need more than brief mention. That theory simply hasno historical foundation . The family was the original, and statusthe fixed basis, of primitive society. The individual counted fornothing; society -the family, the tribe - counted for everything.Government came, so to say, before the individual and was coevalwith his first human instincts. There was no place for contract;and yet this theory makes contract the first fact of social life.Such a contract as it imagines could not have stood unless supported by that reverence for law ' which is an altogether modernprinciple of action. The times in which government originatedknew absolutely nothing of law as we conceive it . The only bondwas kinship, the common blood of the community; the onlyindividuality was the individuality of the community as a whole.Man was merged in society. Without kinship there was no dutyand no union. It was not by compounding rights, but by assuming kinship, 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 mentogether; and authority did not rest upon mutual agreement,but upon mutual subordination.•18. Of the theories of the origination of government in individual lawgiving or in divine dictate, it is sufficient to say thatthe one exaggerates the part played by human choice, and theother the part played by man's implanted instincts, in theformation and shaping of political society.19. The Truth in the Theories. Upon each of these theories,nevertheless, there evidently lies the shadow of a truth. Althoughgovernment did not originate in a deliberate contract, and althoughno system of law or of social order was ever made out of hand 'by any one man, government was not all a mere spontaneousgrowth. Deliberate choice has always played a part in its development. It was not, on the one hand, given to man ready-madeby God, nor was it, on the other hand, a human contrivance. Inits origin it was spontaneous, natural, twin-born with man andTHE EARLIEST FORMS OF GOVERNMENT. 13the family; Aristotle was simply stating a fact when he said,"Man is by nature a political animal. " But, once having arisen,government was affected, and profoundly affected, by man'schoice; only that choice entered, not to originate, but to modifygovernment.20. Conclusion. Viewed in the light of " the observed andrecorded experience of mankind," "the ground and origin ofsociety is not a compact; that never existed in any known case,and never was a condition of obligation either in primitive ordeveloped societies, either between subjects and sovereign, orbetween the equal members of a sovereign body. The trueground is the acceptance of conditions which came into existence by the sociability inherent in man, and were developed byman's spontaneous search after convenience. The statement thatwhile the constitution of man is the work of nature, that of thestate is the work of art, is as misleading as the opposite statement that governments are not made, but grow. The truth liesbetween them, in such propositions as that institutions owe theirexistence and development to deliberate human effort, working inaccordance with circ*mstances naturally fixed both in humancharacter and in the external field of its activity."21. The Beginnings of Government. Government must havehad substantially the same early history amongst all progressiveraces . It must have begun in clearly defined family discipline.Such discipline would scarcely be possible among races in whichconsanguinity was subject to profound confusion and in whichfamily organization therefore had no clear basis of authority onwhich to rest . In every case, it would seem, the origination ofwhat we should deem worthy of the name of government musthave awaited the development of some such definite family asthat in which the father was known, and known as ruler .Whether or not the patriarchal family was the first form of thefamily, it must have furnished the first adequate form of government.22. The Family the Primal Unit. The family was the primalunit of political society, and the seed-bed of all larger growths ofgovernment. The individuals that were drawn together to con1 John Morley, Rousseau, Vol. II. , pp. 183–4.14 THE EARLIEST FORMS OF GOVERNMENT.When society grew,Kinship was still,stitute the earliest communities were not individual men, asLocke and Locke's co-theorists would lead us to believe, butindividual families; and the organization of these families,whether singly or in groups, furnished the ideas in which political society took its root. The members of each family werebound together by kinship. The father's authority bore thesingle sanction of his being the fountain- head of the commonblood-relationship. No other bond was known, or was then conceivable, except this single bond of blood-relationship . A manout of this circle of kinship was outside the boundaries of possible friendship, was as of course an alien and an enemy.23. Persistence of the Idea of Kinship.it grew without any change of this idea.actually or theoretically, its only amalgam. The commonwealth .was for long conceived of as being only a larger kindred. Whenby natural increase a family multiplied its branches and widenedinto a gens, and there was no grandfather, great- grandfather, orother patriarch living to keep it together in actual domesticoneness, it would still not separate. The extinct authority ofthe actual ancestor could be replaced by the less comprehensivebut little less revered authority of some selected elder of the'House, ' the oldest living ascendant, or the most capable. Herewould be the materials for a complete body politic held togetherby the old fibre of actual kinship.24. Fictitious Kinship: Adoption. Organization upon thebasis of a fictitious kinship was hardly less naturally contrivedin primitive society. There was the ready, and immemorial,fiction of adoption, which to the thought of that time seemed nofiction at all. The adopted man was no less real a member ofthe family than was he who was natural-born. His admittanceto the sacred, the exclusive religious mysteries of the family, atwhich no stranger was ever suffered even to be present, and hisacceptance of the family gods as his own gods, was not less efficacious in making him one with the household and the kin thanif he had opened his veins to receive their blood. And so, too,Houses could grow by the adoption of families, through theengrafting of the alien branches into this same sacred stock ofthe esoteric religion of the kindred . Whether naturally, there-THE EARLIEST FORMS OF GOVERNMENT. 15fore, or artificially, Houses widened into tribes, and tribes intocommonwealths, without loss of that kinship in the absence ofwhich, to the thinking of primitive men, there could be no communion, and therefore no community, at all.25. Kinship and Religion . — In this development kinship andreligion operated as the two chief formative influences. Religion seems in most instances to have been at first only the expression of kinship. The central and most sacred worship of eachgroup of men, whether family or tribe, was the worship of ancestors. At the family or communal altar the worshipper came intothe presence of the shades of the great dead of his family or race .To them he did homage; from them he craved protection andguidance. The adopted man, therefore, when received into thishallowed communion with the gods of the family, accepted itsfathers as his own, and took upon himself the most solemnduties and acquired the most sacred privileges of kinship. So,too, of the family adopted into the gens, or the gens received intothe tribe. The new group accepted the ancestry by accepting theworship of the adopting House or community.Religion was thus quite inseparably linked with kinship. Itmay be said to have been the thought of which kinship was theembodiment. It was the sign and seal of the common blood, theexpression of its oneness, its sanctity, its obligations . He whohad entered into the bonds of this religion had, therefore, enteredinto the heart of kinship and taken of its life- blood. His bloodrelationship was thus rendered no fiction at all to the thought ofthat day, but a solemn verity, to which every religious ceremonial bore impressive witness.26. The Bonds of Religion and Precedent. The results of sucha system of life and thought were most momentous . It is commonplace now to remark upon English regard for precedent, andupon the interesting development of ' common ' and ' case ' law.But not even an Englishman or an American can easily conceiveof any such reverential regard for precedent as must have resultedfrom a canonization of ancestors . We have ourselves in a measure canonized our own forefathers of the revolutionary era, worshipping them around fourth of July altars, to the great benefitboth of our patriotism and of our political morality. But the men16 THE EARLIEST FORMS OF GOVERNMENT.of '76, we are all willing to acknowledge, were at their greatestonly men. The ancestor of the primitive man became, on thecontrary, a god, and a god of undying power. His spirit livedon to bless or to curse. His favor had to be propitiated, hisanger appeased. And herein was a terribly effective sanctionfor precedent. It was no light matter to depart from the practices of these potent ancestors . To do so was to run in the faceof the deities . It was to outrage all religious feeling, to breakaway from all the duties of spiritual kinship. Precedent wasunder such circ*mstances imperative . Precedent of course soonaggregated into custom, such custom as it is now scarcely posustom Bible to conceive of, a supreme, uniform, imperious, infrangiblerule of life which brought within its inexorable commands everyarumdetail of daily conduct.>27. The Reign of Custom. This reign of customary law wasthe apdong and decisive. Its tendency was to stiffen social life into aад། ི་undbe.ongsis thelife.-formula. It left almost no room at all for the play of individuality. The family was a despotism, society a routine. Therewas for each man a rigorous drill of conformity to the custom ofhis tribe and house. Superstition strengthened every cord andses knot of the network of observance which bound men to the pracall tices of their fathers and their neighbors . That tyranny of socialconvention which men of independent or erratic impulse nowadays find so irksome, -that ' tyranny of one's next-door neighabor' against which there are now and again found men boldenough to rebel, had its ideal archetype in this rigid uniformityof custom which held ancient society in hard crystallization .28. Fixity of System the Rule, Change the Exception. Suchwas the discipline that moulded the infancy of political society:within the family, the supreme will of the father; outside thefamily, the changeless standards of religious opinion. The tendency, of course, was for custom to become fixed in a crust toosolid ever to be broken through. In the majority of cases, moreover, this tendency was fulfilled . Many races have never come outof this tutelage of inexorable custom. Many others have advancedonly so far beyond it as those caste systems in which the law ofstatus and the supremacy of immemorial custom have worked outtheir logical result in an unchanging balance of hereditary classes,THE EARLIEST FORMS OF GOVERNMENT. 17The majority of mankind have remained stationary in one oranother of the earliest stages of political development, their lawsnow constituting as it were ancient records out of which thelearned may rewrite the early history of those other races whomprimitive custom did not stagnate, but whose systems both ofgovernment and of thought still retain many traces (illegiblewithout illumination from the facts of modern savage life) of asimilar infancy. Stagnation has been the rule, progress the exception. The greater part of the world illustrates in its laws andinstitutions what the rest of the world has escaped; the rest ofthe world illustrates what favorable change was capable of making out of the primitive practices with which the greater part ofthe world has remained per force content.29. Changes of System outrun Changes of Idea. The originallikeness of the progressive races to those which have stood stillis witnessed by that persistency of idea of which I have alreadyspoken. Progress has brought nations out of the primitive practices vastly more rapidly than it has brought them out of theprimitive ideas of political society. Practical reform has nowand again attained a speed that has never been possible to thought.Instances of this so abound in the daily history of the most progressive nations of the world of to-day that it ought not to bedifficult for us to realize its validity in the world of the first daysof society. Our own guilds and unions and orders, merely voluntary and conventional organizations as they are, retain in theirstill vivid sense of the brotherhood of their members at least areminiscence of the ideas of that early time when kinship wasthe only conceivable basis of association between man and man,when " each assemblage of men seems to have been conceived asa Family. " In England political change has made the greatstrides of the last two centuries without making the Crown anyless the central object of the theoretical or lawyerly conception ofthe English constitution . Every day witnesses important extensions and even alterations of the law in our courts under the semblance of a simple application of old rules (secs. 258, 1421 , 1422) .Circ*mstances alter principles as well as cases, but it is only thecases which are supposed to be altered. The principles remain,11 Maine, Early History of Institutions, p. 232.18 THE EARLIEST FORMS OF GOVERNMENT.6in form, the same. Men still carry their brides on weddingjourneys, although the necessity for doing so ceased with thepractice, once general, of stealing a bride. Good blood ' stillcontinues to work wonders, though achievement has come to bethe only real patent of nobility in the modern world. In a thousand ways we are more advanced than we think we are.30. How did Change enter? -The great question, then, is, Howdid change enter at all that great nursery of custom in which allnations once wore short clothes, and in which so many nationsstill occupy themselves with the superstitions and the small playof childhood? How did it come about that some men becameprogressive, while most did not? This is a question by no meanseasy to answer, but there are probabilities which may throw somelight upon it.31. Differences of Custom. In the first place, it is not probable that all the groups of men in that early time had the samecustoms. Custom was doubtless as flexible and malleable in itsinfancy as it was inflexible and changeless in its old age. Inproportion as group separated from group in the restless daysof the nomadic life, custom would become differentiated fromcustom. Then, after first being the cause, isolation would becomethe natural result of differences of life and belief. A family ortribe which had taken itself apart and built up a practice andopinion all its own would thereby have made itself irrevocablya stranger to its one-time kinsmen of other tribes. When its lifedid touch their life, it would touch to clash, and not to harmonizeor unite. There would be a Trojan war. The Greeks had themselves come, it may be, from these very coasts of Asia Minor;the Trojans were perhaps their forgotten and now alien kinsmen.Greeks, Romans, Celts, had probably once been a single people;but how unlike did they become!-- 32. Antagonism between Customs. We need not speciallyspur our imaginations to realize how repugnant, how naturallyantagonistic, to each other families or tribes or races would berendered by differences of custom. " We all know that there isnothing that human beings (especially when in a low state ofculture) are so little disposed to tolerate as divergencies of custom," says Mr. Hamerton, who is so sure of the fact that he doesTHE EARLIEST FORMS OF GOVERNMENT. 19not stop to illustrate it. How ' odd, ' if not ' ridiculous,' the waysof life and the forms of belief often seem to us in a foreigncountry, how instinctively we pronounce them inferior to ourown! The Chinaman manages his rice quite as skilfully withhis ' chop-sticks ' as we manage ours with our forks; and yet how'queer,' how ' absurd ' chop- sticks are! And so also in theweightier matters of social and religious practice.33. Competition of Customs. To the view of the primitiveman all customs, great or small, were matters of religion. HisXwhole life was an affair of religion . For every detail of conducthe was accountable to his gods and to the religious sentimentof his own people. To tolerate any practices different from thosewhich were sanctioned by the immemorial usage of the tribe wasto tolerate impiety. It was a matter of the deepest moment,therefore, with each tribal group to keep itself uncontaminatedby alien custom, to stamp such custom out wherever and whenever it could be discovered. That was a time of war, and warmeant a competition of customs. The conqueror crushed out thepractices of the conquered and compelled them to conform to hisown.-34. The Better prevail. — Of course in such a competition thebetter custom would prevail over the worse. The patriarchalfamily, 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 ofpatriarchal tradition occupying in unquestioned ascendency thechoicest districts of the earth; all others thrust out into the heatsor colds of the less- favored continents, or crowded into the forgotten corners and valley-closets of the world. So, too, with themore invigorating and sustaining religions. Those tribes whichwere least intimidated by petty phantoms of superstition, leasthampered by the chains of empty but imperative religious ceremonial, by the engrossing observance of times and seasons, havinggreater confidence in their gods, would have greater confidence inthemselves, would be freer to win fortune by their own hands,1 For the best development of the whole idea of this paragraph and othersin this connection, see Bagehot, Physics and Politics, Chap. II.Religion and Prics.20 THE EARLIEST FORMS OF GOVERNMENT.instead of passively seeking it in the signs of the heavens or inthe aspects of nearer nature; and so would be the surer conquerors of the earth. Religion and the family organization werefor these early groups of kindred men the two indexes of character. In them was contained inferiority or superiority. The mostserviceable customs won the day.-35. Isolation, Stagnation. Absolute isolation for any of theseearly groups would of course have meant stagnation; just assurely as contact with other groups meant war. The world,accordingly, abounds in stagnated nationalities; for it is full ofinstances of isolation. The great caste nations are examples. Itis, of course, only by a figure of speech that we can speak of vastpeoples like those of China and India as isolated, though it isscarcely a figure of speech to say that they are stagnated. Stillin a very real sense even these populous nations were isolated.We may say, from what we discern of the movements of thenations from their original seats, that the races of China andIndia were the ' back-water ' from the great streams of migration.Those great streams turned towards Europe and left these outlying waters to subside at their leisure. In subsiding there wasno little commotion amongst them. There were doubtless asmany intertribal wars in the early history of China before theamalgamation of the vast kingdom as there have been in the history of India. That same competition of custom with customwhich took place elsewhere, also took place there. But the tribes.which pressed into China were probably from the first much of akind, with differing but not too widely contrasted customs, whichmade it possible for them to assume at a now very remote perioda uniformity of religion and of social organization never knownamongst the peoples that had gone to the West; so that, beforethe history that the rest of the world remembers had begun,China's wall had shut her in to a safe stagnation of monotonousuniformity. The great Indian castes were similarly set apart intheir vast peninsula by the gigantic mountains which piled themselves between them and the rest of the continent. The laterconquests which China and India suffered at the hands of Orientalinvaders resulted in mere overlordships, which changed the destination of taxes, but did not touch the forms of local custom.THE EARLIEST FORMS OF GOVERNMENT. 21- 36. Movement and Change in the West. It is easy to imaginea rapid death-rate, or at least an incessant transformation, amongstthe customs of those races which migrated and competed in theWest. There was not only the contact with each other whichprecipitated war and settled the question of predominance betweencustom and custom; there was also the slow but potent leavenof shifting scene and changing circ*mstance. The movement ofthe peoples was not the march of a host. It was only the slowprogress of advancing races, its stages often centuries long, itsdelays fruitful of new habits and new aspirations. We have,doubtless, a type of what took place in those early days in thetransformation of the Greeks after they had come down to thesea from the interior of Asia Minor. We can dimly see thembeginning a new life there on those fertile coasts. Slowly theyacquired familiarity with their new neighbor, the sea. Theylearned its moods. They imagined new gods breathing in itsmild or storming in its tempestuous winds. They at lengthtrusted themselves to its mercy in boats. The handling of boatsmade them sailors; and, lured from island to island across thatinviting sea, they reached those later homes of their race withwhich their name was to be forever afterwards associated. Andthey reached this new country changed men, their hearts strengthened for bolder adventure, their hands quick with a readier skill ,their minds open to greater enthusiasms and enriched with warmerimaginings, their whole nature profoundly affected by contact withFather Egeus.37. Migration and Conquest. And so, to a greater or lessextent, it must have been with other races in their movementstoward their final seats. Not only the changes of circ*mstanceand the exigencies of new conditions of life, but also the conquests necessarily incident to those days of migration, must haveworked great, though slow, alterations in national character. Weknow the Latins to have been of the same stock with the Greeks;but by the time the Latins had reached Italy they were alreadyradically different in habit, belief, and capacity from the Greeks,who had, by other routes, reached and settled Magna Græcia.Conquest changes not only the conquered, but also the conquerors. Insensibly, it may be, but deeply, they are affected22 THE EARLIEST FORMS OF GOVERNMENT.by the character of the subdued or absorbed races. Norman doesnot merge with Saxon without getting Saxon blood into his ownveins, and Saxon thoughts into his own head; neither had Saxonovercome Celt without being himself more or less taken captiveby Celtic superstition . And these are but historical instances ofwhat must have been more or less characteristic of similar eventsin prehistoric ' times.38. Intertribal Imitation. -- There must, too, have been amongthe less successful or only partially successful races a powerfultendency towards imitation constantly at work, -imitation of theinstitutions of their more successful neighbors and rivals. Justas we see, in the histories of the Old Testament, frequent instancesof peoples defeated by Jewish arms incontinently forsaking theirown divinities and humbly commending themselves to the Godof Israel, so must many another race, defeated or foiled in unrecorded wars, have forced themselves to learn the customs inorder that they might equal the success of rival races.39. Individual Initiative and Imitation. - And this impulsetowards imitation, powerful as between group and group, wouldof course, in times of movement and conquest, be even morepotent amongst individual men. Such times would be rich withopportunity for those who had energy and enterprise. Many agreat career could be carved out of the events of days of steadyachievement. Men would, as pioneers in a new country or asleaders in war, be more or less freed from the narrow restrictionsof hard and fast custom. They could be unconventional. Theirindividual gifts could have play. Each success would not onlyestablish their right to be themselves, but would also raise upafter them hosts of imitators . New types would find acceptancein the national life; and so a new leaven would be introduced .Individual initiative would at last be permitted a voice, even asagainst immemorial custom .40. Institutional Changes: Choice of Rulers. It is easy to seehow, under the bracing influences of race competition, such forcesof change would operate to initiate and hasten a progress towardsthe perfecting of institutions and the final abolition of slavery tohabit. And it is no less plain to see how such forces of changewould affect the constitution of government. It is evident that,THE EARLIEST FORMS OF GOVERNMENT. 23as has been said ( sec. 34) , the patriarchal family did furnish thebest campaigning materials, and that those races whose primitiveorganization was of this type did rapidly come to possess the"most-competed-for " parts of the earth. They did come to bethe chief, the central races of history. But race aggregations,through conquest or adoption, must have worked considerablechanges in the political 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 elementof choice of election -must have crept in at a very early period.The individual initiative of which I have spoken, contributedvery powerfully to effect this change. The oldest male of thehitherto reigning family was no longer chosen as of course, butthe wisest or the bravest. It was even open to the nationalchoice to go upon occasion altogether outside this succession andchoose a leader of force and resource from some other family.41. Hereditary replaced by Political Magistracy. Of coursemere growth had much to do with these transformations. Astribes grew into nations, by all the processes of natural andartificial increase, all distinctness of mutual blood-relationshipfaded away. Direct common lines of descent became hopelesslyobscured. Cross-kinships fell into inextricable confusion. Familygovernment and race government became necessarily divorced , —differentiated. The state continued to be conceived as a Family;but the headship of this huge and complex family ceased to benatural and became political. So soon as hereditary title wasbroken in upon, the family no longer dominated the state; thestate at last dominated the family. It often fell out that a son,absolutely subject to his father in the family, was by electionmade master of his father outside the family, in the state. Political had at least begun to grow away from domestic authority.42. Summary. It will be possible to set forth the nature ofthese changes more distinctly when discussing Greek and Romaninstitutions at length in the next chapters. Enough has been saidhere to make plain the approaches to those systems of government with which we are familiar in the modern world. We canunderstand how custom crystallized about the primitive man;24 THE EARLIEST FORMS OF GOVERNMENT.how in the case of the majority of mankind it preserved itselfa*gainst all essential change; how with the favored minority ofthe race it was broken by war, altered by imperative circ*mstance,modified by imitation, and infringed by individual initiative; howchange resulted in progress; and how, at last, kinsmen becamefellow-citizens.SOME REPRESENTATIVE AUTHORITIES.Bagehot, Walter, " Physics and Politics, " N.Y., 1884 .Coulanges, Fustel de, " The Ancient City, " Boston, 1882.Darwin, Charles, " The Origin of Species, ” 2 vols . , London, 1888.Draper, J. W., " History of the Intellectual Development of Europe. "Freeman, E. A., " Comparative Politics, " London, 1873 .Hearn, W. E., " The Aryan Household, " London, 1879 .Huxley, T. H., “ Evidence as to Man's Place in Nature, " London , 1863.Lang, Andrew, " Custom and Myth, " London, 1885; and article " Family,"in the Encyclopædia Britannica.Lecky, W. E. H., " History of European Morals . "Letourneau, Ch. , " The Evolution of Marriage," N.Y.Lubbock, Sir John, "The Origin of Civilization and the Primitive Condition of Man," London, 1889; and " Prehistoric Times, " London ,1890.Lyall, Sir A. C., " Asiatic Studies, Religious and Social, " London, 1882 .McLennan, J. F., " The Patriarchal Theory, " London, 1885; and " Studiesin Ancient History, " London, 1886; “ Studies in Ancient History,"Second Series, London and N.Y., 1896.Maine, Sir H. S., " Ancient Law, " N.Y., 1885; " Early Law and Custom, "N.Y., 1883, especially Chap. VII.; " Early History of Institutions, "N.Y. , 1875; and " Village Communities in the East and West,"N.Y., 1880.Maurer, G. L. von, " Einleitung zur Geschichte der Mark-, Hof-, undDorf-, und Stadt-Verfassung und der offentlichen Gewalt, " Munich,1854.Mayne, J. D., " Hindu Law and Custom, " Madras, 1888.Morgan, L. H., " Ancient Society. "Peschel, O., " The Races of Man, " trans . London, 1876 .Smith, W. Robertson, " Marriage and Kinship in Early Arabia," Cambridge, 1885.Spencer, H., " Principles of Sociology, " Vol. I. , Part III.; " CeremonialInstitutions, " and " Political Institutions . "THE EARLIEST FORMS OF GOVERNMENT. 25Starke, C. N., " The Primitive Family, " N.Y., 1889.Tylor, E. B. ,66 Early History of Mankind, " London, 1878; " PrimitiveCulture, " London, 1871 , 3rd ed. , 1891 .Westermarck, Edward, " History of Human Marriage," London, 1891 .The classical statements of the contract theory of the origin of government will be found inHooker, " Ecclesiastical Polity."Hobbes, " Leviathan."Locke, John,66 Essays on Civil Government. "Rousseau, J. J., “ The Social Contract. "II.THE GOVERNMENTS OF GREECE.43. The Evolution of Government. - At no one of the variousstages of their development may we photograph the ancientclassical governments and say that we have an adequate pictureof Greek or Roman political practice. We cannot speak of thegovernments of Greece and Rome instructively except as evolutions. Their history is of course never complete at any one period.Moreover, each stage of their development illuminates the processes which we have just been discussing, the processes by whichthe primitive constructions of government were modified andmodern systems of government approached. We may studymodern governments as they are; but in order to understand modern governments as they are it is necessary to know ancient andmediæval governments in their chief successive periods of development.44. The Patriarchal Presidencies: Legislation. We get ourearliest glimpse of Greek governments from Homer. When theIliad and Odyssey were written, monarchy was universal throughout the Greek world. But not such monarchy as grew up in thelater times of classical political development with which we aremore familiar. It was monarchy of a kind which no longerexists. It would be more in keeping with the modern meaningof words to describe it as a Patriarchal Presidency. The kingsof Homer's songs were not often supreme rulers who gave lawand singly administered justice to their subjects. They werechief nobles, rather, the first among equals,' presidents of councilsof peers. The early monarchies of Greece were not constitutedof single cities, like the later republics, but probably of groups ofcommunities acknowledging a common government. The centre26THE GOVERNMENTS OF GREECE. 2727of that government was the council of Elders ( Gerontes) , heads ofthe noble families. That council was the king's council ' onlybecause it convened at the king's summons. He called his peersto a feast. To speak modernly, the dinner-table was the councilboard. State affairs were discussed over the wine and the viands,after a manner which suggests to the reader of to-day FriedrichWilhelm's " Tobacco Parliament," where imperial business shapeditself as it might through the laconic speech of king and councillors uttered amidst the smoke of fuming pipes. Here thepurposes and plans of government originated. Prussian plans,however, were seldom formally announced, while Greek planswere almost always made publicly known. The king summonedan assembly of the people (an assembly, that is, of the gentes,the members of the recognized immemorial kinship) to hear thedecrees of the elders. The presidency of this assembly, likethe presidency of the council, belonged to the king; or, rather,the council itself, as it were, presided, under the headship of theking. The elders sat before the assembled tribesmen about theperson of the king. The king announced the business to beconsidered, and the elders, if they chose, addressed the peopleconcerning it. No vote was taken.. The assembly freely madeknown its sentiments concerning the utterances of the nobleorators by noisy demonstrations of agreement or by a cold silenceof disagreement; and on critical occasions its feelings no doubtcounted for something; it had no choice, however, but to acquiescein the decisions of the council, previously fixed upon at dinner.45. Tribal Justice. Such was ancient Greek legislation . Judicial proceedings were not radically different. In some instances,doubtless, the king dispensed justice as sole magistrate. He wasgenerally 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, even if he didnot often act as sole judge between other litigants. But mostcases arising between men of different family groups were heardby the king and his council in the presence of the people, muchas public business was considered, each councillor being entitledto deliver an opinion in his turn, and a majority of voices probably controlling.28 THE GOVERNMENTS OF GREECE.46. Patriarch and Priest. -- I have called this presidency ofthe king in state affairs a ' patriarchal ' presidency because itbelonged to him by hereditary right, as chief elder by directdescent from the first preferred elder of his people. The familyonce chosen by the gods to preside in council and command inwar was not often set aside; and the usual succession by primogeniture was seldom departed from. This president-king, besides,had other prerogatives typical of a patriarchal headship. Hewas the high priest of his people, performing all those sacrificesand leading in all those ceremonials which spoke the family oneness of the nation . He was the representative of the nation inits relations with the gods. He was also commander-in-chief inwar, here again representing the unity of the people over whomhe presided.47. Not Lord, but Chief. But here the kingly prerogativesended. These presidential and representative functions of theearly Greek king contained the sum of his powers. Aside fromhis presidency in legislation and in adjudication, his high-priesthood, and his command in war, he had little power. There wasno distinct idea as yet of personal allegiance to the monarch onthe part of the people at large. He received gifts from thepeople and had the usufruct of the public domain for his support;but these were accorded him rather as father and typical headof his nation than as master. The services rendered him werelargely voluntary. He was not lord, but chief of his people.48. The Primitive Años. In one sense the king was not chiefof a people at all. The Homeric duos (demos) was not a ' people 'in the modern sense of the term. It was not an association ofindividuals, but an association of families, of families which hadwidened into gentes, but which lived apart from each other insemi-independent groups, each possibly clustering about its ownvillage and living its own separate cantonal life. The king wasthe head of these confederated ' houses,' and the seat of hisauthority was that ' city ' about which their confederate lifecentred.-49. The Antique ' City. ' - This city was as unlike as possibleto those centres of population and industry which are the citiesof our own time. It was very different even from those GreekTHE GOVERNMENTS OF GREECE. 29cities of historical times of which Athens may be taken as a type,and which were the actual homes of the ruling numbers of thepopulation. The city of Homer's day doubtless contained thedwellings of the king and his assistant priests, but not manybesides king and priests, with their families and attendants, livedin it. It was generally a citadel upon a hill to which the confederated families living in the country round about it resorted intimes of actual or threatened invasion. It contained the templesof the gods and was the seat of the common worship. In it wasthe 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 theirdaily life. That was not lived in common, but apart in clans.Each ' house ' was a complete independent organism in itself, witha very vital corporate existence. It had its assemblies; itpassed laws which its members were bound to obey, and whichthe city itself respected. " These assemblies were presided overby an hereditary chief who was priest, judge, and military commander of his house its king, a chief among the heads of itsbranches. Throughout the gens there was the closest brotherhood.It had its common family worship, its religious festivals, its common burying place. Its members could inherit from each other,and were ultimately responsible for each other's conduct anddebts. They could not accuse one another before any tribunal butthat of their own kindred. They stood together as one familyunder a complete family government.-50. Confederate Growth of Family Groups. The monarchicalcity had not originated directly from a confederation of families.It had been developed through a series of other combinations,which, in their religious functions at least, continued to exist afterthe city had come into being. Gentes had first of all united, forthe celebration of some common worship, into Phratries. Phratrieshad combined, from like motives, into Tribes. It was by a comingtogether of Tribes that the city had been formed. Each Phratryand Tribe had realized the family idea by the worship of thesame gods, and the canonization of some common hero as theireponymous ancestor; and each had elevated a chief to its presi1 Coulanges, The Ancient City, p. 137 ( Am. ed. ) .30 THE GOVERNMENTS OF GREECE.dency and high-priesthood. Each had its assemblies and itsfestivals ." -51. The City ' a Confederacy of Gentes. But though the citywas the next step of confederation after the tribe, it was nottribes, nor yet phratries, but gentes which were represented in thecouncil of the king. There had been, so to say, a subsidence ofpolitical organization upon this older foundation of the family. Inthe city the tribe continued to be a unit of worship, the phratry aunit of worship and of military organization; but only the genswas a unit of civil organization . The army was grouped byphratries, but government was constituted by families.52. The city was not an assemblage of individuals; it was a confederation of several groups, which were established before it, and whichit permitted to remain. We see, in the Athenian orators, that everyAthenian formed a portion of four distinct societies at the same time; hewas a member of a family, of a phratry, of a tribe, and of a city. Hedid not enter at the same time and the same day into all these four, " likean American, who at the moment of his birth belongs at once to a family,a county, a state, and a nation. "The phratry and the tribe are not administrative divisions. A man enters at different times into these foursocieties, and ascends, so to speak, from one to the other. First, thechild is admitted into the family by the religious ceremony, which takesplace six days after his birth. Some years later he enters the phratry bya new ceremony. . . . Finally, at the age of sixteen or eighteen, he ispresented for admission into the city. On that day, in the presence of analtar, and before the smoking flesh of a victim, he pronounces an oath, bywhich he binds himself, among other things, always to respect the religion of the city . From that day he is initiated into the public worship,and becomes a citizen. If we observe this young Athenian rising, step bystep, from worship to worship, we have a symbol of the degrees throughwhich human association has passed. The course which this young manis constrained to follow is that which society first followed. " 153. Religion: the Priesthood . -The key to the whole composition of this early society was its religion. The functions offather, chief, and king; the constitutions of family, phratry, tribe,and city, all hung upon certain deep-lying religious conceptions.The father was first of all high priest of his house, the chief firstof all high priest of his phratry, the king first of all high priestof his city. Their other functions rather flowed from the author1 Coulanges, The Ancient City, pp. 169, 170.THE GOVERNMENTS OF GREECE. 31ity of their priesthood than were added to it. Religion was theone conclusive motive and sanction of all social order in that earlytime, as it continued to be for many centuries afterwards; andthe heads of religion were of course the rulers of society.54. It was the leading peculiarity of the religion of that timethat each father, chief, and king represented gods whom no oneelse represented. The gods of one family were never the gods ofanother family, the gods of one phratry or city, never those ofanother phratry or city. Gods were in that day private, not common, property, and were owned inalienably. Each high priest ofthe series, therefore, had a peculiarly sacred and distinctive character within the group over whose worship he presided, and inthat character were contained the seeds of all his other prerogatives. He was chief of the religion of his group; and that religion was the supreme rule of its life. The sacred priesthood ofthe father could be transmitted only by natural succession. Priestscould not be made, unless, in the providence of the gods, theywere not born. Then human choice must be resorted to; butthat choice must keep itself as close to the direct line of thepriestly stock as possible. It must select within the chosenfamily.55. Primogeniture. It is because of the rule of such conceptions of civil magistracy, as an authority resulting from thepriestly functions of the head of each social group, that we findprimogeniture the ruling order of succession alike to eldership,to chieftainship, and to kingship; and it is because of this samerule of religious thought in social organization that we find everymagistrate, even those of the later times when magistrates wereelected, exercising some priestly function, as if to supply a necessary sanction for his civil powers. The magistrate was alwaysnext to the gods, was always their interpreter and servant.56. The City's Religion. In every way the political life of thecity spoke of religion. There was a city hearth in the prytaneumon which a fire, sacred to the city's gods, was kept ceaselesslyburning; there were public repasts at which, if not the wholepeople, at least representatives daily sat down to break thesacred cake and pour out the consecrated wine to the gods; thecouncil-feast to which the king invited the Elders (sec. 44) ,Same as Aufaux -Indians , 721)sirited by their tokons potes.R32 THE GOVERNMENTS OF GREECE.Xthough also a social feast, was itself first of all a sacred, sacrificial repast over which the king presided by virtue of his priestlyoffice . There were festivals at stated times in honor of theseveral deities of the city; and the Council always convenedin a temple. Politics was a religion .57. Decay of the Antique City. - Such seems to have been theuniversal first model of completed political society in the Greekworld. When it comes within our view in the Homeric songs,however, it is already old and near its end. It was the completeand singularly logical result of that widening from family totribe which had filled the ages of human life which had gonebefore it. It was the true offspring of its long ancestry: agreater family descended from a long line of families. But whenwe catch our first glimpse of it, the end of the pure family stateis at hand. A series of revolutions is about to change the wholeorganization of political society.58. This change did not proceed everywhere with uniformity.Similar changes were effected, indeed, everywhere; but differingcirc*mstances gave to change a different speed and a varyingform and sequence in separated localities . It was not so mucha continued development as a differentiation. It will be best,therefore, to continue our examination of the further modificationand expansion of Greek institutions by studies of the historiesof the particular cities of Greece; and it is almost unavoidablethat the particular cities chosen for this purpose should be Athensand Sparta, inasmuch as it is only of these two masterful citiesthat we have anything like adequate knowledge.59. The City absorbs its Constituent Parts. There is, however,one uniform process first to be noted amongst all the governmentsof historical Greece. City life continued everywhere; but thegovernment did not remain cantonal. It became municipal. A' city' was no longer merely the confederate centre of separatedfamily 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, derived their significancefrom their connection with the city. The city was now, insteadof a mere compound or aggregate, a whole, of which tribes, phraTHE GOVERNMENTS OF GREECE. 33tries, and families were parts. The confederation had, so tosay, swallowed up the confederates. The city, a child of familygovernment, had subordinated family government to itself; hadusurped a full supremacy, making its parents its subjects.60. Decline of the Elders' Separate Powers. - - We have not thehistorical materials for making quite plain the causes of this notable transformation in political order; but we can see some of theforces which may have brought it about. By coming togetherunder the early city organization the aforetime sovereign familygovernments necessarily lost much of their importance. Confederation inevitably lessens the individual importance of. theconfederates. They have no longer their accustomed separateprominence; that has been swallowed up in their aggregateweight. However small might have been the power of eachfamily group when it was dissociated from its neighbors, itsindependence gave it a dignity, a cohesiveness, an individuality,and a self-sufficiency of which close association with others robbedit. After the independence of the family had been curtailed byconfederation, 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 thatfamily importance had been in any wise impaired . The Eldersof the first councils would abate not a jot of their pride of bloodand of authority, but would deem themselves as great kings asever. And in those times of reluctantly changing thought scarcelyan element of altered conception in regard to these matters wouldenter for generations together. But, whether sensibly or insensibly, profound modifications both of social thought and of socialpractice would at length take place. Relegated to a subordinaterank in the political order and no longer obliged to preserve thatconstitution which had been essential to it while it continueditself an independent government, the gens would by degrees loseits close integration and compact organic structure. A kingdomwithin a kingdom is a difficult thing to keep alive. Its membersare confused by a service of two masters, and end by really serving only one,- and that the stronger.61. Politieal Disintegration of the Gens. The family died,therefore, as a political organization, for lack, no doubt, of suffi-34 THE GOVERNMENTS OF GREECE.ciently important functions to keep it interested in itself. Itwas gradually disintegrated . In religion, indeed, it steadily keptit* unity for centuries, formally at least, if not vitally; but inother things it fell slowly apart. Its branches became by degreesmore and more independent of each other. Its property was nolonger held in common, but was divided with greater and greaterfreedom, and with less and less regard for that law of primogeniture which had formerly made the eldest-born son of the directline the sole proprietor, as trustee for his kinsmen, of the familylands and goods. In the end, this eldest son got not even thelargest share of the property, but divided it equally with hisbrothers.-HELLAS.62. Greece not Hellas. In our modern thought of the Greekswe are too apt to make Athens and Sparta the centres and epitomeof the whole life of a various nation throughout a long age; forgetting that great Hellenic cities lay far and wide upon almostevery Mediterranean shore; that there had been a great civilization in Greece, at whose antiquity we can only guess, long beforeAthens and Sparta were founded; that the Greeks called themselves Hellenes, rather, and thought of themselves as inhabitants,not of narrow Greece only, but of wide Hellas, of all the spreading coasts that held the scattered settlements of their race.Wherever Greeks established themselves in independence, settingup their own civilization and characteristic forms of government,there was a piece of Hellas; wherever there was an Hellenicpeople, there was a portion of the Hellenic land. Neither on themainland of Greece, nor upon the islands of the Ægean, nor uponthe coasts of Asia, nor in Sicily or Italy or Africa, had theHellenes drawn together under any common political organization; nowhere had their race known any national unity. Hellasnamed a region, not a nation.63. The Migration of the Greek Peoples. The Greeks calledthemselves Hellenes because they traced the lineage of their raceto Hellen, prince of the Thessalians, who had led the first greatmovement of the men of their kin to their modern seats of power.It was he who had led his people, a great host, into the north-THE GOVERNMENTS OF GREECE. 35eastern region of classical Greece, to make it ' Thessaly,' drivingthe Eolians already settled there into new homes further south,in Boeotia. In like manner the Dorians had made their conqueringmovement southward into Peloponnesus, displacing there the olian Achæans, who, thus ousted, in their turn expelled an Ionianpopulation from the narrow, sheltered, southern strip of the Corinthian Gulf coast to which they were to give its historical name-Achaia. Many of the Ionians, thus expelled from their earlyseats in Peloponnesus, passed northward to join kinsmen in Attica.Thus was that distribution of peoples effected in Greece whichwas to characterize the classical period of Greek history.64. But these were not the first movements of Greek history.They stand out bolder to our view, run clearer in the old traditionof the race, usher in the history of which we have some authentie record; but they only changed the old face of affairs in thelittle world that lay about the Ægean. Greece was full of barbarous tribes, settled up and down all her varied coasts, and withinall the pocketed valleys that lay snug among her mountains, longere these disturbing conquerors came out of the north; and notof barbarous tribes only, but of stately cities here and there,where were to be seen the ancient monuments of a great civilization come out of the East. The Phoenicians had, time out ofmind, traded upon these coasts. They had unwittingly taughtthese Ægean tribesmen to follow the sea, and seek a commerce oftheir own. There were native seamen on the Ægean, we know, asearly as the thirteenth century before Christ. They made boldrivals, it turned out, appropriating first the trade of their ownseas, and then pushing out, age by age, into the broad Mediterranean itself, to meet and compete with the seamen of Phoenicia intheir oldest haunts and most familiar havens.65. Upon the western coast of Asia Minor also, and on all theislands that fringed the Ægean upon either hand, or shut it infrom the broader seas to the southward, there lay, in those earliestdays, a population like this of Greece. Whether these primitivepeoples whom the Phoenicians had found were of their own Grecian kin or not, the men of the later age who called themselvesHellenes, could not clearly tell. There were several strains ofdiffering blood, no doubt, among the several peoples of that time.36 THE GOVERNMENTS OF GREECE.-Some seemed like the Greeks, and mingled with them as kinsmen;others showed an alien cast, as if of an aboriginal people whomust have known the land before ever the Greek came. It maybe that the migrations of Hellen and his Thessalians, of theDorians, and of all the peoples they sent afield, were but repetitions of what had taken place more than once before, to be quiteforgotten. Possibly earlier Greek migrations, conquests, and settlements had filled the Ægean upon either coast with a people likethose of the historic time. The Trojans may, after all, have beenelder kinsmen of the men who fought in the hosts of Agamemnon.66. The Phoenician Influence. The Egean peoples did notforget what the Phoenicians had taught them; and the Hellenesreaped the harvest, building their civilization upon the foundationsalready laid in the earlier time. The Phoenicians were alreadyold when the peoples of the northern Mediterranean coasts wereyet in their first youth. They had been traders ever since thesixteenth century before Christ; were elders among the nationsof their time. It was of course inevitable that the unformedGreeks should learn from them as from masters . And they learnedmuch. They probably learned from these first lords of the Mediterranean not only navigation and shipbuilding, but also the useof weights and measures, their alphabet, and much antique tasteand knowledge in the fields of art and science. This easternculture became at length an integral part of Hellenic thought andhabit, hardly to be distinguished as of foreign origin, so completely did they appropriate it, so greatly did they enrich andperfect it by their own genius.67. The Known Settlement of the Egean.- The movementsset afoot by Dorian and Thessalian conquests did not stop withreadjustments of population upon the Grecian peninsula. Atticacould not easily contain the Ionian immigration which came to herfrom the southern coasts of the Corinthian Gulf when the Achæans thrust themselves in there to escape the Dorian conquerors.Many, therefore, passed on from Attica across the sea, to foundIonian settlements upon the central Ægean coasts of Asia Minor.Yet earlier, bodies of Achæans, still under the impulse, perhaps,which they had received from the Dorians, had gone from Achaiato occupy the northwest regions of the same Asiatic coast. EvenTHE GOVERNMENTS OF GREECE. 37the Dorians passed on into Asia from Peloponnesus, taking possession of the southwestern coasts of Asia Minor, and establishingthemselves in the islands of Crete, Cos, and Rhodes. The Dorians,indeed, had become supreme only in the southern and eastern portions of the Peloponnesus, only in Messenia, Laconia, and Argolis.The settlements in the southern islands of the Ægean archipelagoand on the southwestern coasts of Asia Minor symmetrically completed their geographical position as a sort of southern fringe toclassical Hellas.It is, possibly, to this period of the resettlement of Asia Minor by theEuropean Greeks, thus returning, it may be, upon the original lines ofGreek movement, that we owe the legend of the Trojan war.68. The Greek Mediterranean. -Nor was even this the last ofmovement and new settlement. The Greeks were yet to add toa Greek Ægean a Greek Mediterranean. This they effected bymeans of the notable colonization of the eighth and seventh centuries before Christ. Foremost among the colonizers stood IonianMiletus, in Asia Minor, and Ionian Chalcis, in Euboea. Miletusbecame the mother of more than eighty colonies, sending companies of her people to found Naucratis on the Nile delta, Cyzicusand Sinope, and a score or two of other towns, on the Propontis;making settlements further away still, where she did so much ofher trading, on the shores of the Euxine. Chalcis contributedthriving Greek communities to Sicily, created the ' Chalcidici ,'and founded Rhegium in Italy. Others were scarcely less busyin colonization. Dorians created the notable city of Tarentum,in Southern Italy; Achæans built upon the same coast the rivalcities of Sybaris and Croton; Corinthians established Corcyra offthe coast of Epirus, and lusty Syracuse in Sicily. The IonianPhocæans ventured still further west and built that Massiliawhich was to become French Marseilles. Massilia, in her turn ,sent colonists to the eastern coasts of Spain; and these were keptback only by the power of Carthage from spreading wider still.Greek settlement and dominion in the west. In brief, it was adistinguishing characteristic of the whole process by which theMediterranean was at this time so largely Hellenized that townsbegat towns in prolific generation. Each colony was sure to be-38 THE GOVERNMENTS OF GREECE.come itself a mother city. The process was of two centuries'duration, extending from about 750 B.C. to about 550 B.C. But sorapidly did it move, so much faster did the colonies develop in allrespects than the mother cities of the central Greek lands, that inthe first century after the beginning of the Olympiad reckoning(776-676 B.C. ) the " centre of gravity of the Hellenic world ” hadalready 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, onthe Nile, to far western Massilia, in Gaul, throughout almost allthe chief islands of the sea, skirting the shores of Propontis andEuxine, as well as on every Mediterranean coast not dominatedby Phoenicians, thronged busy Hellenic colonies, impressing everywhere upon the life of that early time their characteristic touchof energy, of ordered government, of bold and penetrating thoughtand courageous adventure, and everywhere keeping themselvesseparate, in proud distinctness, from the barbarian peoples roundabout them.69. Race Distribution. — The distribution thus effected of the variousbranches of the Greek race is not without its historical interest. TheÆgean is circled , east, north, west, and south, by Ionian settlements , onlyThessaly and the Eolian colonies on the northwestern coast of AsiaMinor breaking their continuity from Euboea round by the Chalcidici andThrace, down the eastern coast of the Egean, through the islands ofSamos, Icaria, Naxos, Paros, Tenos, and Andros, to Euboea again. Southof this Ionian circle is the Dorian semicircle, which runs through Crete,Carpathus, and Rhodes to the islands and coasts of Southwestern AsiaMinor. Italy is occupied , for the most part, by Æolian settlers, thougha Dorian city stands at one end, an Ionian city at the other, of the lineof Æolian colonies there. Sicily is shared by Dorians and Ionians.Everywhere, however close they may live to each other, these severaltribes retain their distinctness , conscious of kinship and using substantially the same speech, but persisting in noticeable differences of characterand rivalries of aim.70. The Greek Colonial System. There was little or no political unity even among cities of the same division of the race. Nocommon system of government bound the towns of any coasttogether; everywhere, on the contrary, they stood aloof fromeach other, organically separate and self-directive. Greek coloni-THE GOVERNMENTS OF GREECE. 39zation was radically different from the colonization which themodern world has seen, and even from that which the Romanworld saw. A mother city seldom kept any hold upon her colonies whatever, except a very vague hold of religious sentimentwhich even very slight strains of adverse circ*mstance oftensufficed to destroy. Colonies went out to become cities, in thefull antique sense of that term, completely independent, selfgoverning communities.The mother city sent out each colonizing company that left heras if she were sending out a part of herself. The emigrants tookwith them fire kindled at the public hearth (prytaneum), wherewith to furnish their own altars with the sacred flame kept alivefrom of old in the religious rites of their kinsmen. The mothercity supplied them with a leader whom the colonists recognizedas their founder; the approval of the Delphic oracle was oftensought by the emigrants; and they generally awaited, too, theconsent of the city's gods. If, moreover, in after times, a colonycontemplated sending out from its own midst another colony, itcommonly sought a leader and founder at the hands of its ownmother. Many ties of sentiment and tradition bound it to thecommunity from which it had sprung. But it none the lessbecame, immediately upon its birth, a sovereignly separate state,no less its own mistress in all things than the city from whichit had come out. The Mediterranean was fringed, not by a fewGrecian states, aggregates of Eolian, Dorian, or Ionian settlements, but by scores of separate city communities as independent,for the most part, and often as proud, as Athens, for a long ageas powerful also as she.Med 71. Colonial Constitutions. It was natural that each colonyshould retain in its political arrangements the main featuresof the constitution of its mother city; and in the earlier periodsof colonization the Greek world may be said not to have knownany political organization but the aristocratic . The earliestperiods of colonization, it is true, were the periods of monarchy;but of monarchy already in decay. An aristocratic organizationwas, accordingly, at first, almost everywhere either produced orreproduced in the colonies. But it was destined from the natureof the case to undergo in these newer communities much more40 THE GOVERNMENTS OF GREECE.rapid changes than overtook it in the states of the older Helleniclands. The men who founded the colonies of the eighth andseventh centuries had most of them left the mother city to be ridof the tyranny of an oligarchical minority and find a free life.Among colonists settling in regions as yet untouched by theirown 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 ofthe soil, and of the new atmospheric conditions. Neither didTradition bind: everything was to be attempted. Accordinglydemocracy was developed in the outlying parts very much soonerthan in the central lands of Hellas. Athens waited till the endof the sixth century B.C. to see it in the reforms of Clisthenes(secs. 141-151 ); but many of the newer states had witnessed itsintroduction quite a century earlier.72. Although they outran the mother cities of Central Greece,however, in their haste of constitutional change, the colonialcities generally went through just the same phases and stagesof revolution that were afterwards to characterize the slowerhistory of Athens. Democracy was generally approached throughTimocracy, through arrangements, that is, such as Solon introduced in Athens, by which political privilege was graded according to wealth (secs . 128, 129) . Often, too, changes of this naturewere accompanied in the colonies, as in Rome (XII. Tables) andin many of the central Greek communities, by a codification andpublication of the law. Commonly democracies gave place totyrannies, which were often, like that of Pisistratus in Athens(sec. 138) , erected as a bulwark against aristocratic reaction.Either some man of the people pushed himself forward, by fairmeans or by foul, and checked aristocratic domination by reducing all alike to submission to his own power; or it was a memberof the aristocratic class who made use of a favoring opportunityto destroy aristocracy by a concentration of authority in himself;or else a constitutional king threw aside the restraints of law andruled as he willed. In almost every case the tyranny answereda useful purpose. It generally compacted and facilitated resistance to outside aggressions upon the independence of the city; itusually advanced, by the maintenance of steadied civil order, theTHE GOVERNMENTS OF GREECE. 41material interests of the community; it not infrequently bridgedsafely over the gulf which separated aristocratic privilege frompopular sovereignty, preparing the levels of status upon whichalone democracy could be firmly built.- 73. Law of Constitutional Modification in Hellas. - We have,thus, the same forces of constitutional change everywhere operative inthe Greek world; everywhere substantially the same changes take placein substantially the same order. Monarchy in all cases gives place toaristocracy; aristocracy very often shades off into timocracy; all exclusive privileges in the long run give way before the forces of democracy;but democracy is seldom secured its final triumph without the intervention of the tyrant , the man who rules without the warrant of the law.In some of the greater Hellenic cities the period of tyranny is the periodof highest power and prosperity, and democracy comes afterwards onlyto mark decline and loss of separate independence. Many Peloponnesiancommunities cling as long almost as Sparta herself to their aristocraticconstitutions: in them class privilege dies exceeding hard. There is byno means a perfect uniformity in Hellas either in the speed or in thecharacter of political change; but everywhere, unless outside circ*mstancecommands otherwise, the same tendencies, the same leaven of plebeiandiscontent, the same ferment of personal ambition, are operative to workout within each little , self-centred city similar modifications of organization and authority.74. Union and Nationality among the Greeks. Despite theseparateness of Greek city life and its jealous negation of allpolitical power save only that of the citizens of each communityacting independently and for themselves, there was a distinctconsciousness in the minds of all Greeks alike of a commonHellenic 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, pervadedthe Hellenic cities of the ancient Mediterranean world and gaveto the history of the Greeks some features of hom*ogeneity andconcert. A common Hellenic character everywhere distinguishedGreek communities from all others. But their inbred politicalhabit and their wide geographical extension effectually barred ,sooner or later, every movement towards national governmentalunion.Th -75. Religious Community: the Delphic Amphictyony. In religion more than in anything else the Greeks made show of union42 THE GOVERNMENTS OF GREECE.and gave evidence of a spirit of nationality. In many quartersof Hellas cities lying round about some famous shrine of Zeus,Apollo, Poseidon, or other national deity, came together intoan Amphictyony, or League of Neighbors, for the purpose ofworthily maintaining and enriching the worship of the divinityand of defending his shrines against pollution or dishonor. Themost famous and influential of these associations was that whichgathered about the shrine of Demeter Amphictyonis at Thermopyla and the temple of Apollo at Delphi. It included, atone time or another, almost every tribe , great or small, of CentralGreece; and in its later development admitted to membershipDorian states also of Peloponnesus. Its history runs back beyond the beginnings of authentic tradition; but it is probablethat it had at one time considerable political influence. Itsprimary purpose was to superintend the common worship ofApollo, to guard the oracle at Delphi in its sacred independence,to maintain against invasion the territory round about the shrinewhich was consecrated to the uses of religion. It had regularassemblies composed of delegates from the several states in theleague, a permanent official organization, fixed rules of procedure,an ancient prestige.At the semi-annual meetings of the league, held spring and autumn atThermopyle and at Delphi, vast concourses of Greeks swarmed from allparts of the central states of Hellas to take part in the festivals held inhonor of the god, and to get gain out of the opportunities for trade therebyafforded.76. But the equal voice accorded to large and small tribes alikein the votes of the Amphictyonic Council speedily robbed its conclusions of binding force in even the international politics of thestates concerned. The powerful members of the Amphictyonynaturally would not heed the dictation of its insignificant members. Rules there were by which each state in the league wasbound under oath not to destroy any Amphictyonic town, not toturn away from it at any time its running waters, to join heartilyin every duty which looked to the protection of the Delphic temple,and in other respects to observe, at least within the limits of theleague, humane standards of conduct both in war and in peace aswell as faithful standards of coöperation in all matters touchingTHE GOVERNMENTS OF GREECE. 43the worship of the divinity in whose name the association wasformed. There were germs in the constitution of the DelphicAmphictyony on the one hand of national unity, and on the otherof international comity and morality. But these germs werenever developed. The disintegrating forces of Greek politicswere too strong to be stayed by the mild forces of religion.99The Amphictyonic bond was never, perhaps, a close one. During thecentral, most celebrated period of Hellenic history the influence of theleague utterly disappears from politics; and, when in later times it againemerges, it is only to plunge Greece into " sacred wars which affordMacedonia her opportunity for the destruction of Greek independence,and in the conduct of which almost every humane and religious purposeof the Amphictyony is flagrantly neglected.77. The Delphic Oracle: its Influence. None the less, the oracleat Delphi, whose shrine the Amphictyony had been organized to protectand honor, exercised an abiding influence upon Greek life throughout thelength and breadth of Hellas. Its shrine has been called " the commonhearth of Hellas, " the centre towards which the faith and reverence ofthe great Greek family turned as towards the home of their religion, the symbol of their oneness. The Romans, -even the Romans of the timeof the Empire, -consulted the oracle, so great was its fame and authority;and in the Greek world almost every considerable undertaking awaited itssanction. Its responses were generally, in cases of difficulty or of controversy between two powerful states, given with great wisdom and circ*mspection. Those who acted as the mouthpieces of the god acquired afacility and felicity in the utterance of double, as well as of sage, meanings which saved the reputation of the oracle in all cases by virtue of apossible twofold interpretation of its response. Though the influenceof the oracle waned, like all other influences of the older religion , in thelater periods of Hellenic history, its power was very slow indeed to disappear altogether. Its formative authority must be put prominently forwardin any estimate, however slight, of the nationalizing forces operative in thehistory of the Greeks.78. Political Aggregation: Achæan Supremacy. Such political cohesion as the cities of Hellas here and there had was giventhem, not by community of religious feeling, but by the compelling power of some dominating ruler or strong, aggressive cityaristocracy. The story of the Trojan war supplies us with a typeof the only sort of empire that Greek politics was ever to produce the supremacy of one city over many others. Agamemnon,king of Mycena, was leader of the Greeks against Troy because

44 THE GOVERNMENTS OF GREECE.Mycena was the leading state of Greece. Mycenae, lying inland inthe northwestern portion of the great peninsular plain of Argolis,and Tiryns, placed just at the head of the Argolic Gulf, were theseats of the dominant forces of Greek politics in that antiquetime. Built, doubtless, by immigrants direct from Phrygia, theynevertheless figure in the Homeric songs as the regnant citiesamong the Achæans of the Peloponnesus . So controlling is thepart played by Achæans in the Trojan expedition that Homeragain and again uses ' Achæan ' as synonymous with Greek.'Tribes from every quarter of the central Greek lands recognizedthe king of Mycenae as their natural leader: for Mycena dominated Sparta, Argos, Corinth, and every other Peloponnesian community, and these Achæan communities of Peloponnesus were theprevalent powers of Greece.79. Cretan Power - . Of a like pattern was the supremacy said tohave been established in Crete by the mythical king and lawgiver,Minos. At some time in that heroic period to whose events no definitedates can be assigned , Minos, ruler of Cnossus in Crete, was thought bythe Greeks, not only to have brought within his power many of the otherHellenic cities of the island, but also to have constructed something likean empire out of the numerous island states of the southern Ægean,establishing a naval force which swept the sea of pirates, and giving tothe cities under his sway a system of laws which was a prototype of the later and more famous laws of Sparta.- SO. The Supremacy of Argos. Later, Argos gained a liketemporary ascendency in the Peloponnesus. Under Phidon, alineal successor of the Heraclidæ, and therefore a rightful representative of Dorian supremacy, a man of imperative initiativeand commanding ability, Argos dominated the cities of Argolis,and even led for a time the whole of the Peloponnesus. Phidonused his power to substitute Argos for Elis in the presidency, fora single occasion, of the Olympian games.-81. Games and Festivals: the Hellenic Spirit. To preside atOlympia was to preside, for the nonce, over all Hellas: fornowhere did the pan- Hellenic spirit speak with so plain and soimpressive a voice as at Olympia. There every four years Greeksgathered from all quarters of the Hellenic world to hold gamesin honor of Zeus, their national deity. With equal frequencyTHE GOVERNMENTS OF GREECE. 456the Greek world sent its crowds of spectators, its picked athletes,its poets, historians, and musicians to the great Pythian festivals,in honor of Apollo, at Delphi. Every third year the Ionian Poseidon was celebrated with almost equal splendor in the Isthmiangames, held under Corinth's presidency. Zeus had his famousgames and rites every third year at Nemea also, in Argolis. Butno festival had quite the celebrity and influence enjoyed by thosewhich every fifth year witnessed at Olympia, in Elis. The Greeksreckoned time by Olympiads,' by the four-year periods, that is,which elapsed between festival and festival at Olympia. To wina prize in the Olympian games was to win immortality. Thitherpoets went to publish their poems to all who would listen. Embassies came from every Greek city of consequence, on the mainlandof Greece at any rate, to take solemn part in the ceremonies bywhich the religious motives of the gathering were proclaimed .Those who were not Greeks could be present as spectators; butno one who could not prove himself of pure Hellenic blood andfree from all taint of sacrilegious crime could take part in anycontest. The period of the games was made a period of peace,of truce war stood still while the Greeks thus gave token oftheir common national spirit, of their race unity in religion andin standards of achievement. It is scarcely possible to exaggerate the influence, both political and moral, of these festivals.The persistency and enthusiasm with which they were celebratedthroughout fully a thousand years gives impressive evidence oftheir significance in Greek national history.Still, although they spoke a national spirit, they did not securepolitical unity. Nothing but strength, nothing but arms or selfinterest, furnished means sufficient for even those temporary,ephemeral unions of Greek cities which once and again seemedfor a moment to be bringing sections of the Hellenic world intothe possession of better, because more national, political methods.82. The Delian Confederacy. The most celebrated, and in itsearly days most promising, of the combinations by means of whicha certain degree of Hellenic union was secured was the DelianConfederacy. In resisting the Persian invasions of B.C. 490 and480 the cities of European Greece had looked to Sparta as theirBut the two campaigns resulted in bringing Athens for-46 THE GOVERNMENTS OF GREECE.ward as the most effectual representative of Greek independence;and the turn which the contest with the Persians took, so soonas Marathon, Salamis, and Platea had thrust the invaders out ofGreece, made Athens the only possible leader. Immediately afterthese victories the Hellenic states of the Ægean joined the statesof the mainland in following up the military advantages alreadygained and in driving the Persians back from Asiatic as well asfrom European Hellas; and in this movement, as in the earlierdefence of the peninsula, Sparta led. But Sparta soon found thatsuch leadership threatened to result in the breeding of generalswhose personal power would be full of peril to her aristocraticconstitution. She was, besides, not fitted , either by position orby political constitution, to play the part of a naval state: andyet it must be a naval state that should lead the Ægean andAsiatic communities in their contest with the common enemy.Sparta, therefore, withdrew, and Athens became her natural successor in the hegemony.83. The result was the re-formation of the league; or, rather,the formation of a new league. This league was the Delian,formed about B.C. 475. It embraced most of the Ionian states ofthe archipelago and of the Asiatic coast. Delos was chosen asthe seat of its treasury and the meeting-place of its assemblies,not only because of its convenient central location, but also because it possessed one of the most ancient and revered of theshrines of Apollo and could therefore furnish for the league thatreligious background which was indispensable to Greek thoughtin the construction of confederacies. About the shrine in Delosthe confederates gathered as an Amphictyony. Organization waseffected under the wise and eminently conservative guidance ofAristides and that organization promised to be effectual. Theleague had a treasury filled by stated contributions from all thosemembers of the organization who could not themselves furnishmen and vessels to the confederate fleet; that treasury was administered by permanent officials (Hellenotamie) trained for theirfunctions in Athens; its assembly met statedly; it maintained agreat fleet constantly upon the seas: in all respects it was themost compact, most energetic, most promising political combination that Hellas had yet seen.انهTHE GOVERNMENTS OF GREECE. 4784. Athenian Empire --- . But the confederate features of thiscombination speedily disappeared. From the first Athens hadhad, 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 capacityshe immeasurably excelled all the other confederates. Many ofthe confederate states, too, played into her hands. They preferred to pay money into the treasury rather than be at thetrouble of supplying men and ships, and Athens made no objection to the change. Presently she transferred the funds to herown 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. Inevery way, indeed, the money of the confederacy was made tosimplify Athenian finance. When members of the league triedto withdraw from it, they found themselves coerced by Athensinto remaining, being obliged either to pay a heavy tribute fortheir recalcitrancy or to submit to be ruled direct from Athens.The later days of the league saw Athenian officers of oversightestablished in many of the towns which had once been equalmembers with Athens in the confederacy, and in some, Atheniangarrisons. When necessary or expedient, Athens strengthenedher control by new and separate treaties with the stronger townsunder her hegemony. The Delian Confederacy had become anAthenian Empire.It was the resources wrung from this empire that rendered the financesof Athens so easy of management in the time of Pericles; and it was thesuccess of the finances, probably, which gained for his policy of making money payments to the people ( sec. 155 ) the tolerance of the richer classesof the citizens, and prevented the fatal consequences of that policy frommaking themselves at once manifest.85. The Peloponnesian War: Oligarchies vs. Democracies.This empire had hardly been secured when Spartan jealousybrought about its downfall. The Peloponnesian war was foughtnominally because Athens took Corcyra's part against Corinth,Corcyra's parent city, but really because the power of Athens hadbecome too great to be longer brooked by the Peloponnesian states.Most of the more powerful states of the Peloponnesus, besides,48 THE GOVERNMENTS OF GREECE.had oligarchic or aristocratic constitutions, and Athens was therepresentative and embodiment of democracy. That Peloponnesus, with Sparta at its head, should strike at Athenian supremacy was inevitable.The result of the war was to make Sparta supreme. But sheused her supremacy to humiliate, not to unite, Greece. She putgarrisons and military governors (harmosts) in every city convictedor suspected of disaffection towards her. It was impossible thatÆgean Hellas should long be held together by the hateful methodsof her drastic tyranny. Accordingly, Sparta steadily lost herascendency.Athens, on the other hand, gradually recovered much of theground she had lost; gathered about herself a new and moreextensive league, including not only many of her old allies , butalso Dorian and Euboean commonwealths not a few, and even,for a time, Macedonian and Thessalian princes; conducted herself with an unwonted moderation, dictated by sad experience;and had the satisfaction of seeing Peloponnesian fleets again andagain driven from the Ægean. Sparta was forced to be contentto be the chief among oligarchies and to leave the principal rôlein Greece to democrats.86. Meantime Thebes was brought to a sudden and short-lived supremacy by the genius of Epaminondas, utterly defeating the Spartans atLeuctra (B.c. 371 ) not only , but also making forcible and radical readjustments in the politics of the Peloponnesus.87. Macedon. But nothing that any Greek city could doproved effectual in uniting the Greeks: confederacies and hegemonies alike were ephemeral. It remained for Macedon andRome to do for them what they could not do for themselves. TheMacedonians were cousins to the Greeks, having much Hellenicblood in their veins, -though just how much we cannot say. Theywere quite near enough of kin to understand Greek character andpolitics thoroughly, and to make their assumption to lead Greeceseem not altogether unnatural. Philip of Macedon knew hisobject perfectly, easily divined the means of attaining it, andadvanced towards it with consummate craft, energy, and success.First, he conquered the outlying Greek cities nearest to his hand;THE GOVERNMENTS OF GREECE. 4999 next he intervened in a "sacred war -a war among the Amphictyons concerning Delphi -by which Greece was torn, andwon a place in the Amphictyony itself, as a Greek power; andthen, turning to the completion of his designs, he crushed Athens(Chæronea, 338) , reduced the power of Sparta, and, establishinghimself in the presidency of the Amphictyony, brought the statesof European Greece together into a nominal league which was inreality a Macedonian empire. Central Greece was at last compacted for a national undertaking, the Hellenization of theEast.88. The Hellenization of the East. ―-That Hellenization followed the conquests of Alexander the Great. Alexander movedagainst Persia as the leader and representative, because themaster, of the European Greeks. His armies were Greek, inlarge part pure Greek, and the regions which he conquered wereregions opened thereby to the Greeks. Alexander himself didnot live long enough to do much more for the permanent alteration of eastern civilization than clear away obstacles to the spreadand predominance of western arts and ideas, and create the highways of political organization upon which Greek influences wereto advance into Syria and Egypt. The great changes which wereto make the East Hellenic took place under his successors, theDiadochi, amidst the wars by which they sought to establish uponfirm foundations their series of independent Græco-barbariankingdoms. The process was easiest, of course, in Asia Minor,and most nearly resulted there in a veritable Hellenization; buteven in Syria and Egypt it made notable strides, leaving Greekeities like Antioch and Alexandria to attest its vigor, and subduing to Greek influences much important Mediterranean coastcountry.89. The East was by no means, however, made Greek in anysuch sense as that in which the Ægean coasts of Asia Minor hadso 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. Norwere they Greeks, for the most part, who would have been permitted to contend in the games at Olympia. Macedon's supremacy and eastern conquests had produced a new Greek race, with50 THE GOVERNMENTS OF GREECE.deep infusions of Macedonian and barbaric elements both in itsblood and in its manners. It was on that very account the betteradapted to establish a new civilization , which knew little of theold Greek liberty or variety, an orientalized Greek civilization.It was not stiffly retentive of exclusive characteristics, like thepure Hellenic; it was receptive of outside influences, open tocompromise, submissive to rulers.90. The Macedonian kingdoms amalgamated the East and gaveit that individuality which, after Roman dominion had spread toit, was to enable it still to occupy a place apart in the Romansystem, and was to cause it ultimately to emerge from that systema distinct, separate, self- sufficing whole, the Eastern Empire (secs.239, 240).When Constantine transferred the capital from Rome to Byzantium , heof course shifted the centre of gravity from the Latin-Teutonic to theGreek side of the Empire. In the time of Justinian Greek was the prevailing language and the chief imperial officials were Greeks.91. The older Greek cities of the Ægean coast of Asia Minorhad been prepared by their earlier history to fall easily into asystem like that established by Macedon. Denying themselvesthe strength that lies in union, they had singly succumbed, firstto semi-barbarian Lydia, and afterwards to wholly barbarianPersia. It was no new thing with them, as it was with Athensand Thebes and Sparta, to become material in the hands of aconqueror, constituent parts of an empire.92. The Achæan 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 atnational action on the part of the Greeks . The Achæans, whoever since that heroic age of the Trojan expedition when they hadbeen leaders of all Greece (sec. 78) had stood in the backgroundof Hellenic history, working out their own quiet developments incomparative peace and prosperity in secluded Achaia, now again,in the closing age of Greek history, stepped forward to a newleadership and initiative. The cities of Achaia had from time immemorial acted together under some form of political association;but their union did not become significant in the history of Greekpolitics until the year B.C. 280. In that and the previous yearTHE GOVERNMENTS OF GREECE. 51several Achæan towns took heart to cast out their Macedonianmasters, and, having liberated themselves, drew together formutual assistance, making a common cause of their liberty. Thespirit of other towns kindled at the example, and the movementspread. Presently all the Achæan towns had become free, andthe league sprang into importance. Sicyon, which was not anAchæan town, threw in her lot with it and gave it, in the personof her own gallant Aratus, a leader who was speedily to makeit famous and powerful. Under his leadership it became instrumental in delivering Corinth and other neighbors from theirtyrants. Year by year saw fresh accessions to its membershiptill it included Megara, Trozen, Epidaurus, Megalopolis, and evenArgos. For half a century it served as an admirable organ forthe national spirit of the Greeks; for a full century it retainedno small degree of credit; but finally, of course, it was drawn,like all else, into the vortex of Roman conquest. It may be saidto have been the last word of Greek politics.93. And in its constitution it spoke a rather notable word forthe politician. That constitution brought the world within sight,perhaps, of a workable confederate arrangement. The leagueacted through an assembly which met twice every year and towhich was entrusted, not only the election of all confederate officials, but also the supreme direction of every affair which affectedthe foreign relations of any city in the league, even though it werean affair not of general but only of local interest. The businessof the assembly was prepared by a Council (Bovλý, boule) whichwas probably permanent. Its officers were, at first two Generals(strategoi), afterwards one general and a chief of cavalry knownas Hipparchus, as well as certain subordinate general officers; aPublic Secretary (ypauμarevs, grammateus); and a permanentexecutive committee of ten known as Demiurgi. The board ofexecutive officers, it is believed, presided over the sessions of theAssembly.94. Here, certainly, was a better framework than the Greekshad ever known before for concerted national action. Its chiefdefects lay in the composition and procedure of the Assembly.That body was composed, in theory, of every freeman of the citiesof the league who had reached the age of thirty years. In fact,52 THE GOVERNMENTS OF GREECE.of course, it consisted of the whole body of the freemen of thetown where it met (usually Egium, or, in later days, Corinth),and of such citizens of the other towns as had the leisure or themeans to attend. The ancient world knew nothing of the deviceof representation which has solved so many problems of politicalorganization for the Teuton. And the votes in the Assemblywere taken by towns, not decided by the major voice of the freemen present. The few chance attendants from some distant citywithin the league spoke authoritatively for their fellow-townsmen:the smallest delegation had an equal vote with the largest; andyet there was no fixed plan which would make the vote of onedelegation as representative as that of another.95. The Etolian League. The same period saw anotherleague spring into rivalry with Macedonia on the one hand andwith the Achæan towns on the other, whose constitution bearsso close a resemblance to that of the Achæan confederation asto suggest the prevalence in Greece of common conceptions, orat least of common habits, of political association. The EtolianLeague, like the Achæan, had its general assembly of freemen;the business of that assembly was prepared by a committee whosefunctions resemble those of the Achæan Council; the chiefexecutive officer of the league was a Strategus; his associate incommand was dubbed Hipparchus; and a Public Secretary (grammateus) served the league in its formal transactions.96. But these likenesses ought not to be too much insistedupon. We know less of the actual confederate life of the ÆtolianLeague than of that of the Achæan, and what we do know revealscertain important differences between the two associations. TheÆtolian League was not a confederation of cities, but a confederation of tribes . Nor was the leadership which the Etoliansacquired through their league like the leadership which fell tothe Achæan towns. The Etolians inhabited a country backedby impenetrable mountain fastnesses 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 seaan opportunity for wide and successful piracy. Their power andtheir energetic initiative created for them a sort of empire: atone time all of Southern Epirus, Western Acarnania, Thessaly,Fri,THE GOVERNMENTS OF GREECE. 53Locris, Phocis, and Boeotia were included in the league, and iteven had allies in Asia Minor and on the Propontis. It " assumedentire control of the Delphic oracle and of the Amphictyonicassembly. " Its leadership was a purely military leadership,presenting salient points of contrast to the association by meansof which the Achæan Confederates sought to secure themselvesin the enjoyment of peace and liberty.197. Every freeman of thirty years of age was entitled to membershipof the Assembly of the League. That assembly met, not twice, but oncea year, in the autumn, at Thermum, and was attended , of course, only bythose who could afford to attend: that is, by the dominant few.-The Assembly did not select the Strategus of the League, but a list ofnominees for the office, - from which a Strategus was picked out by lot.The Strategus, not a board of magistrates as in Achaia, presided overthe meetings of the Confederate Assembly; and to him were entrusted ,besides his military, certain general civil and representative functions.The Ætolian, like the Achæan League, was eventually, of course, sweptinto the Roman vortex.-98. Rome and the Western Greeks. - Western Hellas, after havingbeen at some points touched by Carthage, had been absorbed by Romebefore the imperial city had sent her armies to intervene in the factionalfights of Greece proper. The cities of Magna Græcia Rome acquiredwhen she completed her conquest of the Italian peninsula , B.C. 272.Sicily, with its Greek and Carthaginian settlements, she acquired in B.c.241 , and organized as a province in B.C. 227. The other western homesof the Greeks she made her own along with Spain and the coasts of Gaul.99. After Roman Conquest. Rome neither undid the work ofthe Macedonian princes in Asia Minor and Syria, nor thoroughlyRomanized there the systems of government. The vitality andself-direction of the semi-Greek municipalities of the East inlarge measure weathered Roman rule, as did also the Greekspeech and partially Hellenized life of Asia, Syria, and Egypt.The compound of oriental, Greek, and Roman methods in government which was effected by the later emperors, when GreekByzantium had become the imperial capital Constantinople, maybe best discussed in direct connection with Roman political development (secs. 228-240).The Greek settlements of Sicily, Italy, Gaul, and Spain weremuch more completely swallowed up and assimilated by Romanorganization.54 THE GOVERNMENTS OF GREECE.SPARTA.100. Greek Constitutions. It would no doubt be possible, bypiecing together such details as have come down to us concerningthe various governments of scattered Hellas, to construct something like a general picture of Greek politics and administration.But those details are not many: the lines of the picture would beeverywhere too broad and vague, and we should bring away fromit hardly more than a body of conjecture. We shall better serveour object by a study of the governments of Sparta and Athens,concerning whose constitutions we have very definite and reasonably complete information. Sparta cannot, indeed, be taken asa type, for her constitution seems to have stood almost if not quiteunique in the Hellenic world. It deserves study for its singularity, its stability, its persistent efficiency. The constitution ofAthens, on the other hand, may fairly enough be taken as typical of Greek life and politics. The two constitutions togethersupply a sufficient range and variety of institutional arrangementto enable us to appreciate the versatility of the Greek politicalgenius, a genius at once subtle and practical, with a touch toomuch, it may be, of nice invention, and yet steady withal andsagacious.-101. Fixity of the Spartan Constitution. It was the circ*mstances of her history which gave to the constitution of Spartaa character in many respects unique, and secured to it an immunity from change which provoked at once the wonder and theenvy of the rest of Greece. Throughout almost all of that chiefperiod of Greek history with which the Greek writers have madeus familiar, from the time of Solon, namely, till the decline ofAthenian power and independence, the Spartan constitutionretained substantially the very form it had had when Spartafirst emerged into the field of history. All its features are atonce ancient and perfectly preserved.102. The Spartans a Garrison of Conquerors. - The Spartanshad come as conquerors into the valley of the Eurotas. Theywere of the number of those Dorians with whose invasion ofPeloponnesus visible Greek history may be said to begin, andtheir hold upon their kingdom had been gained only after manyTHE GOVERNMENTS OF GREECE. 55decades - it may be only after several centuries -of hard fighting advanced inch by inch. Their numerical strength was notgreat, probably at no time exceeding fifteen thousand; they livedin the midst of a forcibly subjected population, from eight toten times more numerous than themselves; and they had, consequently, to maintain their supremacy rather as a garrison thanas hereditary heads of a normal body politic.103. Slaves and Helots. There was no considerable body ofdomestic slaves in Sparta. Slaves there were, indeed, but theirnumber was never large; there being probably only enough tosupply the wealthier families with household servants and thestate with drudges. The burden of all the other services thatwere required in the simple life of the Spartan state fell upon abody of serfs called Helots. The Helots constituted the lowestrank of the subject population of Laconia. They were, doubtless, descendants of the original inhabitants of the country, andowed their degradation to what, had fortune favored them, wouldhave been accounted a reason for giving them all honor, theirdesperate resistance to the advance of the conquering Dorians.They are said by some, indeed, to have received their name, ofHelots, from a town called Helus which had been the last toyield itself to the conquerors, or the most stubborn in revoltagainst their dominion when that dominion was young. Theirpunishment had consisted in being chained, not to masters, butto the land which had once been their own.—They were slavesof the soil, rather than of the soil's usurping masters. Thoughabsolutely without freedom, they were not personal property, tobe sold or exchanged in the market like the poor creatures whothronged the slave-pens of Delos and Byzantium. They couldnot change service save as inseparable appendages of the landsupon which they served. They were, consequently, not at themercy of the individual caprice of their masters, but had themselves something of the inviolability of the property to whichthey were attached. They passed with it, as part of it, and couldnot pass otherwise without special legislative warrant. Neithercould they be killed or misused by their masters without publicauthority, or at least some colorable pretext of the public safety.And, inasmuch as they were thus a part of the real estate of the56 THE GOVERNMENTS OF GREECE.country, its motive part, its machinery of production, andhedged about by the same laws that regulated the usufruct ofthe land, they were allowed to retain, for their own sustenance,a certain portion of the products raised by their labor, that, asservants 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 ownership of the land to which theywere attached. They looked to the state alone, therefore, forany measure which was to affect their condition for better or forworse for new restrictions in consequence of their turbulence.or threatening discontent, or for emancipation in return for suchservices as they were occasionally able to render in war.104. The Periœci . - Sparta was not the lonely mistress of anempty land, where there were only Helots and their taskmastersliving upon scattered farms. Inland towns stood about her oneither hand, up and down the spreading valley of the Eurotas;the coast was dotted all the way from Argolis round about toMessenia with cities that showed a busy trade, and wrought atiron and other stuffs which the world stood ready to buy; Arcadians, Ionians, Achæans, men of the various branches of the oldrace, made up the tale of their population; and they were notHelots. They were not Spartans, indeed, but Perioci, neighbors,native provincials, of whom the Spartans had made subjects, butto whom freedom was left, if not political privilege. Not allstood upon the same footing; they had been conquered at different times, and had, no doubt, made different terms of submission.Some, perhaps, were obliged to receive Spartans into their chiefoffices; all had to pay a stated tribute; all were bound to supplytroops in time of war; some found a hard discipline put uponthem if they were not always submissive enough; none daredresist encroachment; but in the main their people were free,though dependent. Their municipal affairs were, for the most.part, and at all ordinary seasons, in their own hands. Theymight enrich themselves with trade and manufactures as theypleased, so long as they yielded Sparta her full tribute. Theirlot grew steadily worse, no doubt, as Spartan power hardened inthe face of difficulty; but, for the rest, they lived their own lives,throve modestly, and earned for Laconia the title of " the land ofTHE GOVERNMENTS OF GREECE. 57a hundred towns. " Without them, Sparta, with her garrisonedcitizens, would have lacked, not troops only, but money, andmany a needed source of supply.Other inferior classes there seem to have been, occupying positions intermediate in point of privilege and consideration betweenthe dependent Helots and Perioci on the one hand, and thesupreme Spartiate on the other; but of them we know little thatis satisfactory or significant. Such glimpses as we get of themadd almost nothing to our knowledge of Spartan life and politics.105. The Spartiata: Property Laws and State Guardianship. -The Spartiate were the only citizens. The Perioci outnumberedthem three to one, the Helots probably twenty to one; but onlyblood counted for aught in the Spartan state, and nowhere was adominant class more successful in maintaining a rigorously exclusive privilege. Throughout all that period of Sparta's historywhich is best known and best worth knowing, no democratic revolution made any headway against this active, organized, indomitable band of Spartiate, who held the state as an army would holda fortress. Among themselves Spartans were hom*oioi ( Equals);.and in the earlier days of their government every means wasemployed to make and keep their equality a reality. In nothingwas this purpose more apparent than in the system of land tenure.There was private property in land among the Spartans; but thestate was, as I have said, regarded as the original proprietor ofthe land, and individual tenure was rather of the nature of a usufruct held of the state and at the state's pleasure than of a complete ownership. The purpose of the early legislation was tomake the division of the land amongst the Spartan families asequal as possible; and the state frequently resumed its proprietary rights and reapportioned estates when grave inequalities hadcrept in, without a suspicion in any quarter of confiscation . Itwas 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 stateand feel no necessity to engage in a pursuit of wealth, whichwould 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;58 THE GOVERNMENTS OF GREECE.it also compelled rich heiresses to marry men without patrimony,and grafted the poor upon good estates by prescribed adoption.It followed, of course, from such laws, that adoption was not permitted to swell the numbers of any family without state sanctionbeing first obtained, that wealthy heiresses were not allowed tothrow themselves away on rich youths, and that landed estatescould be alienated from the family to which the state had assignedthem neither by sale nor by testamentary bequest. Citizens wereboth wards and tenants of the state.106. Doubtless, however, it was only in the earlier periods ofthis constitution that this patriarchal guardianship and proprietorship of the state was freely and effectively exercised for thepurposes intended . It is certain that in later times great inequalities of condition did spring up among the so-called Equals; somuch so that they fell at last into two distinct classes, the Fewwho were rich, and the Many who were comparatively or utterlypoor. All Spartiate were no longer upon the same politicallevel even, but some were hom*oioi and some Hupomeiones(Inferiors) .107. The Two Kings. The government which the Spartiateconducted is at every point in broad contrast to the governmentsof which Athens was a type. Fortune had given Sparta twokings. Tradition held that the Dorian invaders had, upon entering the Peloponnesus, allotted its various districts to their severalHeraclid leaders; that Aristodemus, to whom Laconia had beenassigned, died before conquering his kingdom, leaving twin sons,Eurysthenes and Procles; that the mother of the boys declaredherself ignorant which of the two was born first; that the Delphicoracle, when called upon to arbitrate the claims of the brothers,commanded that they should both be crowned and given joint andequal authority; and that from these two brothers had sprung thetwo royal houses which reigned in Sparta. Whatever the originof this double kingship, Sparta continued to have two kings tillshe had gone far in that decline which preceded Roman conquest.Their nominal functions were not widely different from thosewhich we have seen the Homeric kings exercising. They " wererepresentatives of the state in its dealings with the gods, deliberative and judicial heads of the people in time of peace, andTHE GOVERNMENTS OF GREECE. 5999 1commanders in time of war.' The very great limitations bywhich their prerogatives were in fact surrounded will appearin what remains to be said of the other institutions of thestate.108. The Council of Elders. In deliberation and legislationthey were, still after the manner of the Homeric constitution,associated with a Gerusia (yepovoía) , or Council of Elders. Themembers of the Gerusia, however, unlike the Elders of the moreancient Council, were elected by the popular Assembly (sec. 110) .They were twenty-eight in number (constituting with the kings,a body of thirty); only those who were of noble blood and whohad reached the age of sixty (the age at which liability to militaryservice ceased) were eligible to membership; and those who wereelected held office till death. As a court of justice, the Gerusiahad jurisdiction over the kings, over capital and other gravecriminal offences, over all state trials, and over cases of atimia,or attainder. As a legislature, its functions were in part sovereign, in part probouleutic; it acted finally upon most administrative matters of importance, and prepared by preliminary decreethe legislative measures which were to be submitted to the voteof the popular Assembly. It stands in character and functionshalf-way between the Athenian Senate of the Areopagus and theAthenian Senate of Four Hundred (secs. 131, 134). thes.109. The Apella, ' or Assembly. The Apella, or Assembly,consisted of all citizens (that is, all Spartiate) over thirty years ofa*ge. The matters which were referred to its vote were, disputedsuccessions to the throne, the appointment of generals, the election of magistrates and Gerontes (Elders) , war and peace, treatieswith foreign states, and, perhaps, all changes of law. I have saidonly that these matters were referred to the vote ' of the Assembly because they were not referred to its consideration. No placewas given in the Assembly to real deliberation; only the kings,the ephors, and the Gerontes could either make a motion or takepart in debate. Indeed, debate was a thing hardly known inSparta, where every man was taught to despise the talker andto admire the man whom later times were to dub the ' laconic 'The utterances of the magistrates and senators in the man.61 Schömann, p. 227.60 THE GOVERNMENTS OF GREECE.Assembly were probably curt opinions packed into a few scantsentences. And the voting was as informal as the debating. Adivision was never restorted to; a viva voce vote decided . It laywith the ephors, moreover, who presided in the Apella, to declareupon which side the preponderant voice had spoken in the vote;and it is not to be doubted that they often heard as they chose.It was within the choice of the Gerusia, besides, to take the voteof the Apella as decisive or not as they chose, at any rate in alladministrative and political matters.110. Election of Elders. Only in the election of Gerontes was adifferent and more elaborate procedure observed. Then, after the Assembly had convened, several persons selected for the purpose stationed themselves in a building near the place of assembling, from whence they couldget no view of the Assembly, but where they could hear the voices of theassembled people. Upon the completion of this arrangement, the candidates for the Gerusia passed through the Assembly, in an order determinedby a lot whose result was unknown to the listening committee near by,and the choice of the Assembly was ascertained by the decision of theconcealed deputation as to which of the successive shouts of applause thathad greeted the candidates as they made their appearance had been themost spontaneous and full-throated . This election by applause was, ofcourse, just an elaborate form of viva voce voting.111. The Ephors. The most notable and powerful office knownto the constitution of Sparta was the office of Ephor. It was anoffice, there is reason to believe, of great antiquity; but development had hurried it very rapidly away from its early form andcharacter. The five Ephors (or Overseers, for such is the meaningof the title) were originally mere deputies of the kings, appointedto assist them in the performance of their judicial duties, to act asvice-regents in the absence of their royal principals, to supervisein the name of the kings the other magistrates of the state, tosuperintend, under the same authority, the public discipline, andto summon, by royal warrant, the Gerusia and the Assembly; inshort, to serve in all things as the kings' assistants. But gradually,through the operation of causes for the most part hidden fromour view, but possibly in part because they sympathized more withthe citizens from whose ranks they were yearly drawn than withthe kings who appointed them, and in part because they werechosen by two kings not always harmonious in their counsels orTHE GOVERNMENTS OF GREECE. 61-purposes, and were thus kept out of sympathy with the royaladministration as a whole, the ephors drew steadily away fromthe control of the kings, until at length their power was not onlyindependent of the authority of the throne, but even superior toit. There is no clear evidence to show when the choice of thefive ephors passed from the kings to the Assembly; but theephors certainly exchanged their character of representatives ofthe kings for that of representatives of the state and virtual masters of the kings, overseers of the chief magistrates as well asof all others. The kings were obliged every month to take anoath to this supreme board of five to exercise their prerogativesaccording to the laws; the ephors, on their part, undertaking, onbehalf of the people, that so long as this oath should be observedthe kings' power should pass unchallenged . Every nine years theephors asked of the gods a sign from the heavens as to whetheranything had been done amiss by the kings, and if the heavensshowed any sinister omen, the conduct of the kings was, uponthe initiative of the ephors, investigated by the Gerusia. Privateindividuals, besides, could bring charges against the kings tothe notice of the ephors, and it rested with them to dismiss thecharges (to answer which they could summon the kings beforethem), or to push them in the Gerusia.112. Of course, if masters of the kings, the ephors were masters of all others in the state also. They could interfere, withfull power to investigate and to punish, in every department ofthe administration; the supervision of the public discipline, andconsequently of the private life of every individual, rested withthem as overseers of the special officers of the discipline; theypresided both in the Gerusia and in the Assembly; could summoneither body when they wished, and lay before them any mattersthey pleased. They were the treasurers also of the state. Ineverything they were the supreme authority. The limitationsof their power lay in the fact that they were a board of fivemen and could do nothing of importance except by a unanimousresolve, and that, their power lasting but a single year, they wouldpresently become private citizens again, liable to accusation andpunishment by their successors. They could no doubt determine,however, who their successors were to be by exercising arbitrarily,62 THE GOVERNMENTS OF GREECE.when they dared, their power to interpret the viva voce vote ofthe electing Apella.One of the board, like one of the Athenian archons, was Ephor Eponymus, giving his name to the civil year.113. The Administration of Justice. With reference to theadministration of justice in Sparta we are not able to say muchmore than that the law was interpreted and applied by the kingsin cases relating to the family, to inheritances, or to the redistribution of property by marriages between rich and poor (the kingsbeing, so to say, Chancellors, and families wards in Chancery);that cases affecting the kings themselves or involving the graversort of crimes were heard by the Gerusia; and that all other caseswere determined by the ephors or by lesser magistrates. Therewere no popular jury-courts.114. The State Discipline.- But the feature of their constitution which chiefly preserved the supremacy of the Spartiate overthe subject population of Helots and Perioci, and made SpartaSparta in the eyes of the rest of the world, was the State Discipline. Every Spartan lived the life of a soldier in garrison. Hedid not belong to himself, but to the state. He was taken fromhis parents at seven years of age, and from that time until hewas sixty lived altogether in public, under a drill of muscle,appetite, and manners such as not even a modern professionalathlete could well imagine. From seven to thirty (thirty beingthe age of majority in Spartan law) he was schooled to endure.the roughest fare, the scantiest clothing, the poorest lodging,and the completest subordination to his elders. After thirty heacquired certain political and social privileges: he was then acitizen, and he could marry; but even then he was permitted noessential change of life. He was expected to keep up his athletichabit of body, he must still eat at the public messes, could haveno home life, but must see his wife only infrequently for a fewminutes, or by stealth. He must marry, —the state required thatof him, and must consequently maintain a household. He mustalso contribute his share of money and supplies to the public messes(Syssitia). Only when he had passed his sixtieth year could he inany measure lead his own life or follow his own devices,THE GOVERNMENTS OF GREECE. 63It was probably failure to comply with the requirements of this discipline or to contribute the required quotas to the Syssitia , that degradedSpartiate from Equals ' to Inferiors ' ( sec. 106 ) .•115. This discipline included the women only during theiryouth; girls had to ' take ' gymnastics as the boys did; but theydid not go into the discipline of the men. All education whichwe should account education was excluded from the system. Onlymusic of a rude sort, the use of simple stringed instruments anda taste for the songs of war, softened the constant training ofsense and sinew. The product was a fine soldiery and capital soldiers' mates, shapely, coarse, sturdy women, and lithe, laconicmen.116. Principles of Growth in the Spartan Constitution. — Theconstitution of Sparta, for all it is so symmetrical, is not to belooked upon as a creation, any more than is that of any otherHellenic city. The mind must not be misled by the fact that indescribing it we are under the necessity of taking it at some onemoment of complete crystallization into supposing that such wasexactly its form at every period of its history. It was, like everyother constitution, a slowly developed organism. It early took apeculiar form, and long preserved it, because of the peculiar situation of the Spartans, who were few and had to hold their poweragainst a hostile subject population greatly superior to them innumbers. They could not venture to relax for a moment theirinternal discipline; and so it happened that throughout the periodduring which history is most concerned with Sparta her constitution remained fixed in a single form. But afterwards it passedthrough the same stages of tyranny and democracy that had longago come to Athens. The non-citizen classes eventually broketheir way in large numbers into the constitution, and the Romansfound Sparta not unlike the other cities of Greece.117. Lycurgus. - The Spartans themselves, however, as I havesaid in a previous chapter (sec. 15), regarded their constitution asa creation, and the creation of one man, Lycurgus (B.c. 820) . Tohim was ascribed a rearrangement of the three tribes which constituted the state, a division of land between Spartiate andPerioci, the institution of the Gerusia, a provision that thereshould be monthly meetings of the Assembly, and, above all, the64 THE GOVERNMENTS OF GREECE.creation of the celebrated system of state discipline. It is not atall improbable that he was in fact very largely instrumental ingiving to the constitution the particular form in which we haveseen it. But it is extremely improbable, if not intrinsicallyimpossible, that he can have done much more in the way of effecting actual fundamental changes than did Solon or Clisthenes atAthens. The Spartan constitution had probably made no leapsor bounds; Lycurgus, doubtless, only guided its course at a verycritical, because consciously formative, period.ATHENS.Th.118. The City of Solon: Kingship gone. We get our first distinct view of Athenian affairs in the time of Solon, to whomAthens attributed her first great reform code. The Solonianconstitution is by no means so well known as historians couldwish; but its main features may be said to be beyond dispute,and these features speak very plainly of a society quite unlikethat of the primitive Greek ' city .'Solon was put in charge of the city's affairs by being chosenArchon.' The ancient kingship had disappeared, the archonshipwas one of its fragments. The abolition of the kingship haddoubtless come about through an aristocratic revolution, such asAristotle afterwards noted as altogether a normal movement inGreek politics. The kings ' of the Council had grown by degreesquite intolerant of the authority of the king, their patriarchalpresident. He stood for the growing state; they, only for thedisintegrating gentes. His hereditary headship was threateningto overshadow permanently their individual part in affairs. Theytherefore determined to control his office, to make it dependentupon themselves. Codrus, the last king of Athens, is said tohave sacrificed himself in a war with Peloponnesian foes, becauseof a prophecy that the enemies of Athens would be victorious.unless the life of her king were yielded up in the contest, and itis added by the tradition that the Athenians thereupon abolishedhereditary kingship by way of emphasizing their belief that noone was worthy to succeed Codrus. Possibly we are not atliberty to discredit all of the pretty story; it is such a story asTHE GOVERNMENTS OF GREECE. 65we would not discredit if we could. But we may feel assuredthat there were other potent reasons in the minds of the rulingmen of the city why Codrus should be the last of her kings, andthat they were quite clear in their determination that, if not Codrus, then some early successor of his should be the last of thehereditary monarchs of Athens.-119. The Archonship. They did not, however, transform theoffice at once into an elective magistracy. They could not. Bothunreasoning religious belief and calculating policy would haveforbidden any such violent breach in the ancient order of thefamily-state. The kingship was put into commission. The heirsof Codrus continued to bear the title and enjoy the sacred precedence of kings for more than three hundred years; but theirmilitary powers were transferred to a Polemarchus, their chiefcivil duties to an Archon. They were no longer the real, butonly the titular heads of the state. The king had been givencolleagues holding office for life; and the monarchy had becomea limited monarchy.120. Nine Archons. - In the year 752 B.C. radical changes setin. The hereditary principle was abolished , along with tenure forlife . King, polemarch, and archon were all, it was arranged, tobe chosen for a term of ten years. The office of Polemarch hadhitherto, there is reason to believe, like that of the King, beenhereditary in a single noble family. But henceforth both kingand polemarch were to be elective magistrates. Both, moreover,were to be subordinated in dignity to the archonship whose incumbents had from the first been freely chosen from the whole bodyof nobles. The king was still to be chosen from the royal family,the polemarch from the household which had held the office sinceits institution; but the archon was to be the official head of thestate, and every magistracy was to be elective. Change could notstop there. Scarcely forty years went by ere it was necessary toopen all three offices alike to every man of noble blood whocould command the suffrages of the Council of the Areopagus.Another generation and the three offices were made annual, anda board of nine archons was instituted. Of this body, one wasstill chief; the old dignity still lived in the Archon Eponymus,from whom the year took its name in all official records. The66 THE GOVERNMENTS OF GREECE.second archon was still Archon Basileus, the state's high priestAn Archon Polemarchus carriedThese three were still, no doubt,and the heir of kingly functions .still the authority of polemarch.the chief officers of the public administration. But six Thesmotheta were added; at first , it may be, only as scribes and secretaries to enroll decrees and keep record of the law, assistants ,no doubt, to the three chief magistrates; but finally as judgeswith certain definite magisterial functions of their own.All nine archons, indeed, were judges. Upon the chief archondevolved the weighty duty of determining cases of family lawand inheritance; the king-archon (Basileus) adjudicated the thennumberless cases which religious law controlled; the archon polemarch heard all cases between metics and foreigners; to the sixThesmothetæ fell the general oversight of the laws and the conductof such cases as belonged to the jurisdiction of none of the threeprincipal archons, -all cases not otherwise assigned. There were,moreover, certain judicial functions which the nine archons exercised jointly, such as the punishment of banished persons whohad broken their banishment, the oversight of the balloting forcertain minor judgeships, the presidency of certain meetings of thepeople, etc.―121. Solon Archon Eponymus: the Crisis. - Such was thechanged magistracy of Solon's time. Solon was chosen ArchonEponymus, but with powers such as no archon ever regularlypossessed. He was chosen at a crisis, a crisis which by itsvery existence reveals a society radically unlike the society ofkinship described by Homer. There are three contending parties in the state, the men of the mountain, the men of theshore, and the men of the plain. Neither the men of the mountain nor the men of the shore would have been so much as countedin the Homeric state. They were not of the immemorial kinshipat all. They were the tillers of the soil, holding their lands ofthe noble families who lived in and about Athens, and who constituted the third party, of the plain. They were outsiders tothe state. The noble families were the state; these men of themountain and the shore were their subjects, bearing every burden,and sharing not a single privilege. Every movement which theyhad made towards even a partial independence had compelledTHE GOVERNMENTS OF GREECE. 67them to borrow capital of their masters and so had clinched theirslavery. The men of the shore, the men, that is , who tilled thelands which lay upon the eastern coast or stretched across thesouthernmost portion of the Attic peninsula to famous Sunium,and who plied a quiet trade as fishermen as well as farmers, weremuch better off than the goatherds of the mountain, who hadboth the exclusiveness of the law and the nigg*rdliness of natureto contend with, in the mountainous districts to the north; butboth hated the privileges of the Eupatrids, and were ready tocombine in order to wreck them. The one could not, the otherwould not, any longer abide content with a lot which forbadethem all independence and all hope of a voice in the determination of their own destinies. The men of the coast would haveaccepted moderate concessions; the poor peasants in the mountains clamored for radical measures; but both would have something done. The Eupatrids, with their submissive retainers onthe plains about the city and the port, were in a numerical minority , though doubtless strongest in resource, and deemed concessionunavoidable. Solon was a man of advanced age and of establishedreputation, alike for courage, for honesty, and for wisdom. Allparties turned to him with hope and trust. He was chosenarchon, invested with extraordinary legislative powers, and biddenmake a constitution just to all alike. This was in the year 594 B.C.. 122. The Draconian Legislation. The discontent was of longstanding and had already led to radical constitutional changes.Even upon the Plain, where the broad acres of the Eupatrids layin the genial air, there was keen distress. The land was workedby tenant farmers, Hektēmoroi, ' Sixthers,' who undertook to liveupon a sixth part of the produce of their farms, and yield theother five- sixths by way of rent to their masters, the owners ofthe soil. The austere law of the land made their very personsliable for the fulfilment of the hard agreement; if they failed init they were sold into slavery in the markets of Egypt and Lydia.123. But constitutions do not change for metayers; their distress simply added an item to a great sum total. It was of moreimmediate consequence that a body of independent peasant proprietors stood at the doors of the state moved by a deep distemper. It was hard for such men to maintain an independent68 THE GOVERNMENTS OF GREECE.standing upon a small scale where the soil was shallow and theyield uncertain. It was time and again necessary to borrow; andto borrow money might mean, not the loss of his land merely bya delinquent borrower, should his crops fail, but the loss of hisindependence also. He must become a ' Sixther ' and set outupon the road, it might be, to slavery at last.124. Moreover, changes of another sort had come, which theEupatrids could neither foresee nor prevent. Methods of warfarechanged. The field was no longer to be won only by mountedknights and men in chariots. The day of the foot soldier hadcome, and privileged knights found themselves dependent uponthe common soldier, the heavy armed hoplite, drawn from theranks of those to whom political privilege had not yet beenaccorded. The state could not long safely depend upon menwhom it drove to the wall,of whom it required everything, towhom it granted nothing. It had even become well-nigh impossible for such men to know what the law was. The Council ofthe Areopagus haled whom it willed before it, and could punishas it pleased any action which it chose to define as an offenceagainst the state. The archons were at no pains to observe consistency in their judgments, and " no one could ever foresee theend of a suit. " In their hands the law was both harsh anduncertain.125. One attempt at reform had been made already. Dracohad been called in a generation ago (B.c. 621) to do what Solonwas now about to attempt again. Draco had not hesitated toadmit to political privilege every independent yeoman who owneda yoke of oxen and could fit himself out as a hoplite. The archonsand those who held chief command in the field, he left still to bechosen from the ranks of the wealthier nobles; but all other magistracies he threw open to the general body of citizens withoutdistinction of rank, yeomen (Zeugitai) included, and some ofthese were to be chosen by the impartial lot. He added to theexisting constitutional machinery a Council of Four Hundred andOne, to be made up by lot out of the general body of citizenspast thirty years of age. The principal judicial powers of theAreopagus he took away, -transferring them chiefly to the Prytaneis, a standing committee of the new Council, —-and the elderTHE GOVERNMENTS OF GREECE. 69body was left with hardly more than authority to oversee themagistrates in the performance of their duties. The uncertain.law was reduced to writing and published, that no man needdoubt any more what the sentence of the law would be.126. Such changes may well have seemed enough to create theproper forms whereby to give effect to the altered life of thestate. But they did not go to the root of the matter. Draco'scode had made the old laws definite and public rather than rendered them equitable. Their very definiteness may have addeda touch of harshness, by making them stiffer and more inexorablethan ever. And his political reforms hardly justified themselvesin practice. It was one thing for a yeoman to be made eligiblefor office, but quite another for him to secure it, even by the lot.Nothing had been done to prevent the selling of ' Sixthers ' intoslavery. Yeomen (Zeugitai) might still grow too poor to own ayoke of oxen or equip themselves as hoplites; might still dropto the rank of Sixthers,' and come some day to see the slavepens. Something more was needed, and Solon was to undertake it.6Wed.Of a127. Solon's Economic Reforms. - Solon was of Eupatrid blood,but in fortune ranked with the middle class in the state.temperament at once ardent and balanced, he was suited alike bystation and by inclination to hold an even hand between factions.No man doubted his honesty or his fervent patriotism; all lookedto him with confidence to bring the state out of its troubles;and he certainly proceeded with courage and thoroughness. Heinstituted both economic and constitutional reforms, conservative enough to force no too rude or sudden break with the past,yet decisive and timely enough to assure, if they could but beobserved, the future of the state. It was indispensable that economic reforms should go before constitutional changes. It wasnecessary to enfranchise the poor; but it was necessary to freethem before enfranchising them. Solon's first step, accordingly,was to cancel all outstanding debts, set free those condemneddebtors who had been retained as slaves in Attica, and clear the'farms of the yeomen farmers of the mortgage pillars which stoodeverywhere upon them. He took these drastic measures with theless scruple because he believed the great mass of the debts thus•70 THE GOVERNMENTS OF GREECE.27arbitrarily struck away to have been unrighteously, if not unlawfully, imposed, and deemed his policy in the matter for the mostpart one of just restitution. He recast the law of debt also,henceforth forbidding the pledging of any man's person for debt.He sought also to restrict all estates, for the future, within a certain fixed maximum, and so still further prevent the ousting ofpeasant proprietors.128. From negative measures of relief Solon turned to originative measures of amelioration. Hitherto the struggling merchantsof Attica had used the clumsy coins and the antiquated weightsand measures of the Baotian and Peloponnesian states, and hadfollowed the lead of Ægina in their trade. Solon turned themtoward the quicker commerce of the Ionian cities of the Ægean,by substituting the weights and coinage of the great centres oftrade in Euboea, used round about all the great circle of Helleniccities that stretched to the farthest settlements of the bold Miletans. He took steps, too, to encourage handicrafts and diversifyindustry. He redistributed the incidence of taxation . The Attic.population had long been divided into four property classes basedupon an assessment of income. At the top of the scale stood thepentacosiomedimni, those wealthier Eupatrids whose incomes werenot less than five hundred measures (medimni) of corn, oil , orwine drawn from their estates; the second class, the Hippeis orknights, consisted of those whose incomes were not less than threehundred measures; the third, the Zeugitai or yeomen, of thosewhose incomes did not fall below two hundred measures,owners of oxen, men able to equip themselves as hoplites; thefourth, of the dependent manual laborers, the Thetes, standing atthe bottom of the scale. Amongst the first three classes Solonsought to effect an equitable division of taxation; and they alonewere to be subject to regular military service. The Thetes wereexempt alike from taxation and from ordinary military duty.-129. Only landed property was reckoned in this classification.Probably it constituted the mass of property in Attica at thattime, though there were traders in the community, and Athenshad never had the contempt for commerce and the trades whichso long prevailed at Sparta and Rome. Solon himself had bettered his fortunes by merchandising. He had been a merchantTHE GOVERNMENTS OF GREECE. 71before he became a statesman. It was his knowledge of the world,acquired in his travels as a merchant, indeed, which constituteda large part of his qualification for the task now assigned him.But personal property was not an important enough element inthe wealth of Athenians at that day, it would seem, to be accordedpolitical weight. The Eupatrids were, of course, the chief landowners. Theirs was still , consequently, to be the chief part inthe management of the state.crat.130. Solon's Political Reforms. - Solon also took the four property classes, to which the city had long been accustomed , as thebasis for his political reforms. Every freeman of Attica who wassubject to the laws was to have some part also in their administration; all were to be citizens. That he deemed an indispensable condition of order, good feeling, and efficiency in the state.But not all were to share in an equal degree. Solon was no demoHe sought to set up, not government by the populace, buta rightly restrained government by men of wealth and position.He did not greatly depart from the model set for him by Draco,except in respect of the means which he provided for making therestraining action of the commons real and effectual in the popular assembly and the jury courts. The archons (who were to acthenceforth, not separately, but as a judicial board) , all stewardsand farmers of the revenue, all officers of police and prisons wereto be chosen exclusively from the pentacosiomedimni, the wealthiest class in the state. They were to be chosen, however, in partby lot. In the case of the nine archons, for example, each of thefour tribes into which the people of Attica had from of old beendivided was to choose ten whose names should go into the urn,and out of the forty thus nominated nine were to be picked outby lot. The other magistracies were also filled by lot, no doubtin the same manner. All minor magistracies were open to befilled from any of the three property classes.131. The Council. - The Council of Four Hundred, institutedby Draco, found its suitable place in the arrangements of Solon .All citizens except those of the lowest property class were madeeligible to be chosen to its membership; but here again the lotwas to supply its impartial office . The Four Hundred " were tobe chosen by lot from among a larger number of candidates elected72 THE GOVERNMENTS OF GREECE.¹by vote by each separate tribe. " The term of membership wasbut a single year, and no man could serve a second time untilthe lot had fallen once upon all the other eligible men of his tribe.The functions of the Council were pro-bouleutic. All business tobe brought before the popular assembly was first digested andprepared by the Four Hundred; without its decree, no businessat all (aside from the impeachment of public officials againstwhom charges were preferred) could be submitted to the subordinate body. Many administrative matters the Council could itselffinally dispose of. It had attained to a place of authority midway between the Assembly and the Senate of the Areopagus.-132. The Assembly. To the Ecclesia, the general Assembly ofthe city, came all citizens alike, of whatever class, Thetes no lessthan pentacosiomedimni; and in it Solon found his appropriateorgan of popular control. Here any man might bring a magistrate to book at the close of his year of office by formal impeachment. Here was the people's engine of self-defence, should needarise. The Assembly was also, no doubt, accorded the right offinal decision in all questions of war or treaty. It certainly votedupon such proposals as the Council felt bound to lay before it.Its noisy democracy stood back of all the action of the state.133. The Heliaia. Little formal change was made by Solonin the duties of the archons; but he effected a very radical curtailment of their power in making their judgments in most casessubject to revision by a thoroughly democratic tribunal, theHeliaia. The Heliaia was a great jury court. Every year alarge body of jurors was made up by lot from among the generalbody of citizens, of whatever class, any and all persons beingincluded in the drawing who were thirty years of age and offeredthemselves for the service; and to this body, acting no doubt insections, many cases of the first importance could now be takenby appeal which had hitherto lain within the exclusive jurisdiction of the archons. The archonal court thus became for themost part only a court of first instance. In the hearing of criminal cases, moreover, the Heliaia was often the first and onlyHere was certainly a very much popularized judiciary.134. The Senate of the Areopagus. — In the case of the Areopa1 Gilbert (Eng trans. ) , p. 137 .THE GOVERNMENTS OF GREECE. 73gus Solon showed that he meant to preserve the old as well as toadvance to what was new and better. He restored to the ancientSenate substantially the same powers it had had before the legislation of Draco. It was not only to retain the power which ithad all along exercised, of supervising the law and the constitution, superintending the magistrates, and preserving the publicmorals; it was in addition " invested with increased judicialpowers, which made it again competent to inflict fines and evendeath upon those whom it adjudged offenders against the state.More especially cases of homicide or arson, and of attempts tooverthrow the constitution, were placed under its jurisdiction . " ¹Once more it had its ancient place of guidance. Its membership,as before, was each year recruited " from those outgoing archonswho had held their office without blame." It was still a chiefinstrument of the aristocratic constitution.135. The New Principles introduced . Such was the constitution of Solon. Many as were the changes of form which itintroduced, important as were the changes of principle whichit effected, it was throughout wrought in a conservative spirit. Itpromised profound alteration, but it did not threaten rapid alteration; and it forced no revolution at all . It left the noble families in power; but it placed their authority upon a foundation ofpopular consent, and bounded it on its judicial side by an appealto popular jury courts. It sanctioned wealth as a standard ofpolitical privilege, and so gave potency to a principle which wouldinevitably antagonize and in the end oust the idea of hereditaryright; but for the present men of the old blood were the onlymen of wealth. It was to require still other generations of slowchange and still another recasting of the laws to see privileges ofblood done away with and ended.136. Fate of the Solonian Constitution. Solon's legislation nodoubt pointed out the way to all subsequent successful reforms;but it satisfied no one, and for the time lived for a little onlyby the sufferance of its enemies. Solon had, in the eyes of theEupatrids, done too much. They saw an end to their exclusiveprivileges in accepting the principles of his reforms. In the eyesof the upland herdsmen he had done too little: they had hoped1 Gilbert (Eng. trans. ) , p. 137.74 THE GOVERNMENTS OF GREECE.to see him attempt an equalization of property. Only the peasant farmers of the shore lands saw themselves freed and aggrandized by the cancellation of mortgages, and were inclined to deemthemselves well off. For ten years after his work was done Solonquitted Athens, to give factions time to cool, to escape appeals toundertake further change, to give the new order time to settlequietly into habit. " Another man," said he, " placed in myposition would not have held the factions, nor reposed until hehad churned the butter from the milk. " But the churning wenthotly on without him, and the butter was separated at last. Forthirty years and more did his constitution stand, indeed, substantially unaltered; for he had at least put hope and energy intoevery element in the state and rendered change difficult. But hotstrife filled all the time with quick recurrent troubles, and revolution became at length inevitable.137. The chief archonship had become the principal prize ofpolitics, and the Eupatrid factions fought bitterly for its possession, seeking by intrigue to secure it even through the uncertainlot. Twice did the office remain vacant for a whole year (590 and586 B.C.) , the struggle of parties having led to a total failure ofthe constitutional machinery. Once (582 B.C.) a certain Damasiusdefied the law and kept the office for two years, leaving it onlywhen put out by force. Thereupon (580 B.C.) a compromise wastried: the number of archons was increased to ten; five, it wasagreed, should be elected from the Eupatrids, three from theparty of the rustics, two from the artisan class; and for twentyyears more affairs were kept at an uneasy balance.138. Peisistratus. And then revolution came at last, throughone of Solon's own kinsmen. The old factions which Solon hadmeant to stamp out, were too vital, too much of the very structure of the community, to be held permanently at an equilibriumby the mere sentences of the law, or even by the matching ofstrength with strength. The Eupatrids themselves, by their ownfactional divisions, supplied their opponents of the uplands andthe shore with leaders out of their minority. Peisistratus, one oftheir own number, determined to make use of the situation tomake himself master. Proclaiming himself a partisan of democracy, he drew about him the hardy men of the mountain districtsTHE GOVERNMENTS OF GREECE. 75not only, but those also who were ruined by the abolition of debtsand all those whose citizenship was questionable: all who werepoor and all who were afraid, -whom change might help andcould not injure. Solon early perceived his designs and bluntlyuttered his intrepid protest against them. He was, he said,"wiser than those who could not see that Peisistratus meant tomake himself tyrant, braver than those who saw it and heldtheir tongues. But no one heeded or had force or addressenough to balk the usurper; and Peisistratus got the power he coveted (560 B.C. ) .139. Here was an end, it must have seemed, to all progressand to the just movement of reform; and it was infinitely sadthat Solon should have lived to see and end his days amidst suchscenes. But, in reality, it was probably the success of Peisistratus that kept the Solonian constitution alive for the peacefuluses of later times. Amidst the clash of factions it would probably have been trodden into the ground, to be forgotten, had notPeisistratus, willing to preserve so much of its machinery assuited his own purposes, upheld it by his own despotic power.Its forms were more popular than those of the constitution it hadbeen meant to supersede; he was, professedly, the champion ofthe popular cause; it was politic that he should retain the mostliberal institutions at hand. He therefore affected only to preside, with certain supreme and extraordinary powers, over theconstitution set up by his uncle.140. Peisistratus proved himself a statesman, self- possessednot only and capable of holding the mastery he had won, but agenuine friend of the people also and a wise guide in affairs.Twice he was expelled from his place of power and driven forthfrom the country by the factions he had ousted; but both timeshe returned stronger than before, - for the city found therule of the factions impossible, and the same conditions thathad induced Peisistratus' usurpation made the bulk of the citizens willing that it should be perpetuated. The old councilscontinued to sit; the officers of the Solonian constitution continued to be chosen, though the uncertain lot was probablyabandoned. Peisistratus himself offered to stand trial before theAreopagus upon a charge of murder and submit to the old re-

76 THE GOVERNMENTS OF GREECE.sponsibilities of citizenship. He saw to it that the small farmersof the country-side got money, when it was needed, on easy terms;he sent magistrates among them to settle disputes upon the spotand keep them away from the city courts: he exercised a dominion of influence and guidance rather than any tangible kinglypower, content if men of his own blood or following found theirway always into the chief offices. "His usurpation had the assent both of the nobles and the commons. The former he conciliatedby social intercourse, the latter by pecuniary aid; and naturehad endowed him with the arts of charming all. " ¹ He no doubtdetermined what taxes should be taken, and how the publicmoneys should be spent; but did all in moderation and with apurpose to serve the state; and ordinary men were fain to becontent. He lived to a ripe age, and died quietly "of someinfirmity, in the archonship of Philoneus (527 B.C.) , thirtythree years after he first became ruler; " and so the Solonianconstitution was handed on. When Peisistratus' sons, forgettinghis prudence and failing to imitate his wisdom and moderation,were driven from the place of power he had established for them(511-510 B.C. ) , enough of Solon's work remained to serve as thebasis and model for permanent reforms.141. Cleisthenes. Athens had won peace by submitting tothe usurpers. Civil strife sprang up again, almost upon theinstant, when they were gone, fomented by their own partisans.Isagoras, who was of the party of the expelled rulers, soughtto prevent the establishment of a democratic polity, and foundhimself face to face with Cleisthenes, of the great clan of theAlemaionids, time out of mind leaders in affairs, and in theselatter years steadfast opponents of the party of the Peisistratids. Isagoras did not scruple to call upon Sparta, whoseking was his friend, for aid, and would have put a council ofthree hundred, named by himself, into the place of the guiding body of the Solonian constitution, to the perpetuating ofoligarchy and the jeoparding of all popular rights. But thecity rose against him; and Cleisthenes was bidden completethe work Solon had begun. It was close upon fifty yearssince the usurpation of Peisistratus; a whole generation had1 Aristotle, " Const. of Athens, " 16. .THE GOVERNMENTS OF GREECE. 77come and gone; the city was used to peace and desired its continuance; the power of a single family had brought all menalike to one level of privilege; and all were now ready to see afair balance struck in affairs.142. New Citizens . —Cleisthenes' first act was to broaden thebasis of citizenship. Athens had begun to draw to herself ofrecent years not a little of the trade of the Ægean, andstrangers had become numerous in her markets, setting themselves up in trade at her port and in the city itself, and identifying themselves with her life. Slaves, too, bought out offoreign markets, were generously treated in Athens, were given,indeed, so great a practical freedom that they were many ofthem enabled to earn independent incomes, and finally to buytheir legal emancipation. Cleisthenes did not hesitate to sweepall these within the new franchise by means of which he meantto create a new democracy and generate a new spirit in affairs.He conferred citizenship upon " all free inhabitants of Attica,not only Athenians who until then had not been in possession offull citizenship, but also the strangers domiciled in Athens, andthose slaves even who by emancipation had attained the standingof metics," or privileged denizens ( see sec. 157) . It was essentialthe old factions should be swallowed up.143. The Demes. Solon had not meant to provide a democratic constitution; Cleisthenes saw that it was necessary to doso. Nothing less would check faction or quicken the life of thecountry as a whole. Eupatrids must take their chances of political preferment in competition with all other citizens. Solon hadreserved the chief offices for the rich, and had constituted theSenate of Four Hundred of representatives of those four tribes.of immemorial origin which, being aggregations of the sacredgentes and phratries which were the strongholds of Eupatridkinship, were themselves, in a sense, exclusive aristocratic associations. Moreover, he had left untouched the factions of thelocalities, had left the men of the hill country, and those of thecoast hamlets contrasted with each other in point of privilege,and neither united in any common interest or enterprise with thericher landowners of the plain. The men of the plain were mostof them, probably, pentacosiomedimni and hippeis; those of the78 THE GOVERNMENTS OF GREECE.shore region were hardly more than Zeugitai; those of thehills were doubtless Thetes wholly. These several elements itwas obviously Cleisthenes' task to unite, in order that the statemight be single and undivided in organization. He determined,therefore, to strike at the root of the old tribal arrangements,and effect a new basis of organization altogether. It was aradical thing to do; but there was, fortunately, a conservativeway to do it. Attica had from of old been divided into littledistricts, Demes they were called, centring in villages or hamletsthroughout all the country-side. Many of these were moreancient than Athens herself, were the original sites, indeed, ofindependent communities, and carried memories that ran backto the first settlement of the land. We do not know how manydemes there were in Cleisthenes ' day, - Herodotus says one hundred; but, whatever their number, Cleisthenes united or groupedthem into thirty larger districts, trittyes. Here was an old name,but a new thing. There had been twelve trittyes all along underthe Solonian arrangements; but twelve was a multiple of four;a trittys had hitherto been a subdivision of one of the fourimmemorial tribes, and Cleisthenes was breaking with theorganization that represented the Eupatrid supremacy. Heincreased the number of trittyes, accordingly, to thirty. Ten heformed from the demes of Athens and the plain, ten from thedemes of the coast country, ten from the demes that lay withinthe hills.¹-- 144. The New Tribes and the Council. From these materialshe constructed, not four, but ten new tribes out of hand, takingcare, in their make-up, not to separate but to unite the threeregions which had hitherto bred their distinct factions in thestate. To each of the new tribes he assigned three trittyes,chosen by lot, one out of the plain, one lying in the hills, oneupon the coast. The factions were thus stripped of their political organization, and the several parts of the country were boundtogether in a new union. A tribe could act henceforth onlythrough the coöperation of men of the plain, the mountain, andthe shore. The four ancient tribes continued to exist, but onlyas fraternal and religious organizations. They ceased to form part1 Gilbert, p. 146–148.THE GOVERNMENTS OF GREECE. 79of the political structure of the state, and lost their politicalsignificance altogether. The membership of the Council whichDraco had instituted and Solon had reorganized, was increasedfrom four hundred to five hundred, fifty to be taken from eachof the new tribes, and the demes to serve as electoral districts.The demes lying within Athens itself, belonged, under the newconstitution, to no less than six of the tribes: the city was boundto the country, and the life of the state took on a new aspect.- 145. New Phratries. The plan was undoubtedly quite artificial, though the materials out of which the new tribes weremade were old and familiar; but it could not well have beenotherwise than artificial . Religion and its imperative prejudicesforbade any dilution of the genuine Attic gentes, which werethe core of the old tribes, by the introduction of new citizens ofno birth at all. The old organizations could not be radicallypopularized without committing something very like sacrilege;and since they could not be reformed, the only thing left to dowas to replace them. The way to do that was to create entirelynew political materials. The new tribes, however, were giventheir own ecclesiastical status and functions. There could be noorganization without its special priesthood and religious observances; the old organizations could not readily be made to opentheir sacred mysteries to any not of the real or adopted kin.The best thing to do, therefore, was to put aside the old gentilefamily unions altogether, and make up a new congeries of associations with their own worship and their own internal governments, which, if artificial at first, might be expected in time toacquire a vitality and a dignity as substantial and as lasting asthose of the Eupatrid dispensation . This, accordingly, was done.The new tribes adopted eponymous heroes; the statues of theirpatrons were set up in the Agora, where their tribes mightgather about them when assembled for consultation; and politicswas asked to forget the Eupatrids.146. At one point, moreover, Cleisthenes was able to find aplace for his new citizens within even the religious organizationof the old order. Though he could not force an entrance forthem into the clans, with their common hearth and altar, theircommon burial grounds, and their common festivals, the phratries,80 THE GOVERNMENTS OF GREECE.the larger religious associations into which the clans were groupedfor a more public worship and ceremonial, were more like political bodies and could be recruited. He accordingly drew the newcitizens together into religious societies (" Thiasoi "), or gaveofficial recognition to such as he found already in existence, andeither gave them a place within the old phratries, or formed newphratries to serve as their bond of union, as local circ*mstancesdictated, seeking in all cases, so far as possible, to unite themembers of each deme within one and the same phratria. Itwas thus that he completed the religious incorporation of thenew order, and secured for his political arrangements an adequatesanction, as if of custom and religion.147. Expansion of the Popular Jury Courts.- The next step inthe popularization of the constitution was a still further extensionof the jury court system. The number of Heliasts was increased,and it was provided that they, like the senators, should be chosenproportionally from the ten new tribes. Since the new tribes.contained many who had never before been citizens and some whohad once been slaves, this expansion of the popular jury systemmust, of course, have been of great consequence as a step towardsdemocracy.. 148. Ostracism.- As a finishing touch, Cleisthenes supplied thenew democracy with an efficient means of self-defence. He wasdetermined that no Peisistratus should use the new constitutionfor his own ends. He therefore completed his work by addingthe law of Ostracism. This is a law much scorned by commentators of our own modern times, when democracies are too strongand self-possessed to fear the wiles of demagogues; it is condemned even by Aristotle; but there can be no question about itsutility as a temporary expedient. Its provisions were not harsh.It provided that whenever it appeared that some one statesmanwas gaining such an ascendency over the people that he might,if he chose, use it unlawfully for his own advantage, as Peisistratus had done, or employ it to raise his rivalry with some opponentto a dangerous pitch of bitterness, the Assembly might call uponthe people to declare their opinion as to whether any one shouldbe temporarily banished from the state . When such a preliminaryresolution was voted, no names were put in nomination. ThereTHE GOVERNMENTS OF GREECE. 81were no forced candidates for ostracism. The question wassimply, Is there any one in Athens of whom it would be to theadvantage 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 andher possessions for ten years. Six thousand votes were probablymore than a third of the total vote of Athens. Although aminority, therefore, could compel the retirement of any publicman, it must have required a very strong and well-groundedmovement of public opinion to bring about the concerted actionof six thousand voters against one man. A very evident propriety in banishing him must have existed before so many peoplewould see it and declare it. That ostracism was not a weaponeasy to use is shown by the striking infrequency of its use, andby the steady decline in its employment. It was a vital elementof the constitution at first, but as that constitution gained greaterand greater assurance of permanence and stability, it more andmore decisively cast aside an instrument which, after all, was aninstrument for the weak and not for the strong; and ostracismfell at length into utter disuse. Not, however, before it had doneits appointed work. It had unquestionably given the new constitution time and assured peace in which to grow. It had affordedthe people an opportunity to acquire a steady political habit andan habitual " constitutional morality " such as they might neverhave attained to had the rivalries of party leaders had no checkplaced upon them, and had political intemperateness had nopunishment to fear. That it was intelligently understood, as ameans of peace and not of strife, was shown by its end. It wasabolished, after ninety years of occasional employment, becauseit had been used at last as an instrument of partisan warfare bythose who could effect strong factional coalitions against opponents whose rival power had grown to inconvenient proportions.149. Effect of the Cleisthenian Reforms. -The work of Cleisthenes proved definitive: he had found for the constitution asound basis which it could keep. The only new magistrates hecreated, it seems, were certain Apodectai, receivers of revenue,through whom he effected a slight alteration in the managementof the city's finances. But his establishment of ten tribes carried82 THE GOVERNMENTS OF GREECE.state.with it indirectly a change in all the official structure of theEvery administrative board was sooner or later given tenmembers, one to be taken from each tribe. Even the archonscame to be regarded as a board of ten, the tenth member beingfound in the person of their official secretary. The number ofStrategoi, general officers of the army, among the rest, was increased to ten (501 B.C. ) , each tribe choosing the commander ofits own contingent. The polemarch held, still , the formal presidency in military matters; the Strategoi were in theory only hisassociates in command. In practice, however, this board ofgenerals tended, as it turned out, to overshadow him, if not indignity, certainly in power, and was destined afterwards to ousthim, and indeed others of the nine archons, from many otherduties of administration.The relations of the Strategoi to one another are illustrated in an interesting 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 ofMiltiades' command that Marathon was fought, though the others are saidto have yielded their commands to him on the days which preceded thebattle.150. Local Administration. More important than such formalchanges was the strong local rootage of the new institutions in thedemes, their administrative unit. The demes had been given areal vitality: their several demarchs were the real instruments ofthe state in the local conduct of affairs. Solon had districtedAttica into forty-eight naucraries, four within each of the oldtrittyes, to carry the burden of supplying a navy. Each naucrariawas responsible for furnishing a single ship, and in each therewas a naucrarius ( ship furnisher ' ) , whose duty it was to collectthe necessary taxes and take command of the ship supplied by hisdistrict, upon its completion. This older division naturally disappeared with the abolition of the old trittyes and tribal organizations as administrative unions. The deme took the place of thenaucraria, and the demarch succeeded to the functions and dutiesof the naucrarius. The demarchs, appointed annually by lot,were also officers of their communes as well as officers of thestate. Each was president of the assembly of his deme, and itsministerial officer in carrying out its purposes of local self- govern-THE GOVERNMENTS OF GREECE. 83ment. It was through him that the new political life of theseancient communes in all things expressed itself.151. The Power of the People. The real character of thenew constitution showed itself, however, not in the demes, butin the Assembly and in the popular jury courts. The centre ofpower had shifted . It lay henceforth, not in the Areopagus orthe Council, but in the people's Ecclesia and in the people'stribunals. Events, indeed, delayed this consummation; but theyalso assured it. Cleisthenes' work was hardly done before sharpmenace of invasion by the Persians had put a new aspect uponaffairs. In 493 B.C. Mardonius came, to be frightened back bythe opportune fury of stormy Athos. Three years later camethe anxious decade (490-480) which began with Marathon andended with Salamis. During the stress of such times it wasimpossible affairs should be guided by the people's Assembly ora numerous Council, and the Areopagus once more became theone efficient governing power in the state. For seventeen years(479-462 B.c. [? ] ) it ruled as it had not since the days of Draco.But it was under the stress of those very years of effort that thePersian wars had brought in their train that Athens came to herfull vigor and the Athenian people to a full self-consciousnessand national purpose. War brought discipline and administrative concentration; success at last brought empire: the cities ofthe Ægean paid tribute to Athens, as to the mistress of theirleague (secs. 83, 84) . The result was, that the business of governing grew enormous for Athens, and the democracy learnedto assert itself in affairs . It is estimated that in the time ofPericles (444-429 B.C. ) no less than twenty thousand Atheniansfound employment in the service of the city, as soldiers, jurymen, councillors, or magistrates. Slaves toiled while citizens.flung themselves into the immense undertakings of the imperialcity; and the popular Assembly became the centre of the city's life.152. The Economic Effects of the Persian Wars. -The Persianwars wrought important changes in the economic condition ofAthens. The country had more than once been laid waste by thePersians, and such ruin had resulted to the owners of land thatprobably very many who had once had rank in the first of the84 THE GOVERNMENTS OF GREECE.property classes had sunk to the last. Landed estates, the onlyestates hitherto reckoned in the census of wealth, had been,temporarily at least, rendered almost barren of income. Personalproperty 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, andbecause a commercial state naturally a naval state also. Thereunquestionably grew up among her citizens a very considerableand influential body of merchants possessed of much wealth,and yet by reason of their lack of real estate, ranking no higherthan the poorest Thetes. We can understand the considerations ,therefore, which, soon after the battle of Platæa, led Aristides topropose, and the city to consent, that eligibility to office shouldbe based upon an assessment which should include property ofall kinds (479 B.C.).153. In 487 B.C., in the very midst of the Persian terror, thearchons had once more been made subject to choice by lot, out offive hundred candidates selected in the several demes. But theStrategoi drew to themselves the chief magisterial functions ofthat troubled time, and the Areopagus the chief place of guidance. It was not until 462 that the democracy gave its rule finalreality. It was then that, probably under the leadership ofEphialtes, the Assembly once for all asserted itself, strippingthe Areopagus once again of its extraordinary powers, reducingits criminal jurisdiction to cases of blood-guiltiness, and itselfassuming the principal rôle in the direction of affairs. In 453Peisistratus' system of local justices, which he had used for political purposes, was resumed for administrative convenience. Inorder to relieve the Heliaia of the burden of petty cases, thirtydeme judges were appointed, to go circuit among the demes, andgive final judgment in all causes in which the amount in controversy was not more than ten drachmæ.The introduction of election by lot was probably rendered comparatively innocuous by the fact that the functions of the ordinary magistracieshad been greatly curtailed in importance by the institution of the popularjury courts and the concentration of administrative duties in the hands ofthe generals. Any man not lacking ordinary sense might now fill a magistracy without serious fault.THE GOVERNMENTS OF GREECE. 85154. The Reign of Pericles. - When Pericles came to the frontof affairs in Athens (444 B.c. ) the constitution wore the featuresof a complete democracy. Not a little of the business of thestate was prepared and sent down to the Assembly by the Councilof Five Hundred; a few immemorial duties of supervision stilllingered in the hands of the Areopagus; but the Assemblydecided everything. Its decrees originated administrative measures as well as initiated policies in the field of politics. The heat,the vacillation, the dangerous ardor of the popular will playedthrough all its action as the moment determined. It was strongwhen strongly led, weak when left to itself, terrible in everyseason of passion. The world had probably never seen beforesuch freedom of speech and of action as characterized its stirringsessions when questions of moment pressed. It was every freeman's right to speak as he willed; cries of coarse humor or hotimpatience, of raillery and of enthusiasm, broke constantly fromthe heady crowd; it was a school of oratory and of resource inaction, and the masterful man who had won a place of confidence among the people had there his uneasy power at its full.155. Pericles was such a master. His influence, though permanent almost beyond example in the politics of democraticstates in that changeful day, rested, not upon usurpation, butupon his commanding influence with the people; and the wholeof his policy was directed, by intention at least, towards theeducation of the people in the tasks of government and thestandards of conduct which belonged to Athens as the leadingstate of Greece not only, but of Hellas as well. He was neverarchon; but almost every other post of authority fell to him thatthe people could give. He was Strategus, master of the finances,superintendent of public works; and through these officeswrought his will. It was under his inspiration that Athens wasfilled with the splendid monuments of art and architecture whichhave given a special distinction to the Age of Pericles.' It wasat his suggestion, it is said, that the people were voted smallpayments for their attendance at the jury courts and the assemblies, besides a largess to enable them to attend the exhibitionsin the theatre. The theatre played a large part in Pericles'plans for the education of the populace; no means were to be686 THE GOVERNMENTS OF GREECE.neglected which might serve to quicken the judicial and politicalactivities of the people, or strengthen Pericles in their favor.The policy of thus paying the people to perform their dutiesand to be amused was, nevertheless, in the end a fatal one. Solong as a Pericles dominated, all went well; but so soon as thecity lost Pericles and forgot the fashion of statesmanship whichhe had set, much began to go ill. The majority of the citizenssoon came to prefer paid service in civil offices to the necessaryservice in the field of battle. They were not long in becomingmere lethargic pensioners of the state.156. Decline of Athens. -- Such was the constitution of Athenswhen the calamities came which marked the close of the Peloponnesian war and the beginning of the final decline of Athenianpower and independence (secs. 85-87) . This time of decline,ending with the victory of Macedonia at Charonea in 338 B.C.,witnessed one or two temporary returns to oligarchy, and manyproofs of a sad decline in political morality on the part of thepeople. Their pay for service and their largesses for pleasurewere, of course, increased, constant depredations were made uponthe rich, and the naval and military reputation of the city wasgiven over into the keeping of mercenaries. But the Cleisthenianconstitution was retained in substance to the end.-157. The Metoici. —Our view of Athens will be completeenough for our present purposes when we shall have noticed thenon-citizen classes, — the slaves and the metoici. The Atheniandemocracy illustrated the character of all ancient democracies inconfining the franchise at its widest to a body consisting of littlemore than half of her population. Besides her citizen population,which may be placed at one hundred and thirty thousand, she hada slave population almost as great (namely, about one hundredthousand) , and a population of resident aliens (metoici) whichwas, in prosperous periods, about one-third as great (forty-fivethousand). The class of metoici was composed principally offoreigners, among whom were Lydians, Phrygians, Syrians, andPhoenicians, as well as Greeks from other Hellenic cities , whohad come to Athens to take advantage of the exceptional facilities afforded for trade in consequence of her situation and policy,though many manumitted slaves were also reckoned of theirTHE GOVERNMENTS OF GREECE. 87number. It was from the ranks of the metoici that Cleistheneshad recruited the body of citizens, and in later times great numbers of them were often naturalized for democratic purposes.But so long as they remained metoici their disabilities were many.Without a special vote of permission they could not acquire property in land in Attica. They were obliged, under pain of a criminal prosecution, followed on conviction by possible slavery, tochoose a patron (Prostrates) from among the citizens as an intermediary between them and the state. It was only through thispatron that they could approach the courts to enforce their rights.or in any way deal with the state. They were mulcted in taxesas if they were citizens, besides paying a special protection taxand a special fee for market privileges. They had, moreover, tosuffer 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 theirprivileges were of great moment, is abundantly proved by theirnumbers alike in times of peace and in seasons of war.158. The Athenian Slaves. -The Athenian slaves were eitherbarbarians taken in war or slaves bought in the slave markets ofDelos, Chios, and Byzantium. The vast majority were boughtslaves. They not only served as domestics, but also constitutedthe bulk of the agricultural laborers, miners, artisans, factoryhands, overseers, and day-laborers. They also often carried onretail trade, and were sometimes superintendents of larger undertakings, money-changers, etc. Their domestic service often included private secretaryships and the like. The state itself ownedslaves whom it employed as armed police, and even upon occasion as soldiers. " Further, the lower servants of the publicofficials —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. " Slavesand metoici supported, the citizens conducted, the state.1 Schömann, p. 352.88 THE GOVERNMENTS OF GREECE.GREEK ADMINISTRATION.159. We are without detailed information with regard to themethods 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 everyday application and execution of the law, is of a very general sort,which does not describe exactly the administration of any onecity, but gives in bare outline functions performed, doubtless, bya multiplicity of officers in the larger cities, but in the smallercities by only a few officers saddled with a multiplicity of duties.Aristotle gives us a list of the tasks commonly considered properto administration in Greece, and it is chiefly upon this list thatwe must rely for a general view of the subject. From it we learnthat the governments of the Greek cities usually undertook thesuperintendence of trade and commerce, particularly within thecity markets, the inspection of public buildings, " a police supervision over houses and streets," and the oversight of fields andforests; that they had receivers and treasurers of the publicmoneys, officers whose duty it was to draw up documents relatingto legal business and judicial decisions, to hear complaints, andto issue warrants for the institution of legal processes, bailiffs,jailers , etc. Besides these officials, there were the officers of thenaval 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 theaccounts and review the proceedings of those who handled therevenues of the state; and the superintendents of the public worship, those officers who still in most cases bore the ancientroyal title, long since banished from secular politics, but retainedin the religious hierarchy in memory of a kingly function toomuch revered by men, and thought to be too much esteemed bythe gods themselves, to be exercised by any save those who borethis oldest and most hallowed of titles (sec. 120).In states like Sparta, where civil life was a rigorous discipline,there were, of course, special officers to superintend the trainingof the young and the conduct of the adult of both sexes. SpartaTHE GOVERNMENTS OF GREECE. 89had, too, her public cooks to prepare the coarse diet of theSyssitia, and her superintendents of the public messes.REPRESENTATIVE AUTHORITIES.On Greek Institutions:Aristotle, "The Constitution of Athens."E. Poste. London and New York, 1891 .Translated and edited byBluntschli, J. C., " Allegemeine Staatslehre. " Book I., Chaps. III . andVI. Stuttgart, 1875. There is an American translation of thiswork.Coulanges, F. de, " The Ancient City." Translated by Willard Small.Boston, 1882.Cox, Rev. Sir Geo. W., " Lives of Greek Statesmen." (Harper's. )Chaps. on Solon and Kleisthenes.Fowler, W. Warde, " The City State of the Greeks and Romans. "London and New York, 1893.Gilbert, Gustav, "Handbuch der Griechischen Staatsalterthümer. "2 vols . , Leipzig, 1881-5. 2d ed. of Vol. I. , revised 1893. Revisededition of the portion on Sparta and Athens translated by E. J.Brooks and T. Nicklin, under title, " Greek Constitutional Antiquities ." London, 1895.Greenidge, A. H. J., " A Handbook of Greek Constitutional History."London and New York, 1896.Harper's " Dictionary of Classical Literature and Antiquities . " Editedby H. T. Peck. New York, 1897.Kuhn, E., " Ueber die Entstehung der Städte der Alten. Komenverfassung und Synoikismos . " Leipzig.Schömann, G. F., "The Antiquities of Greece: The State . " Translatedby E. G. Hardy and J. S. Mann. London, 1880.Smith, " Dictionary of Grecian and Roman Antiquities, " 1858.On points of Greek History:Curteis, A. M., " Rise of the Macedonian Empire. " (Series of Epochsof Ancient History. )Curtius, Ernst, " History of Greece."Droysen, J. G., " Geschichte des Hellenismus. " For the Macedonianperiod. 2d ed. , 1877-88.Grote, Geo., " History of Greece. " Very full for the cities of Hellasoutside the classical mainland.Holm, Adolf, " The History of Greece from its Commencement to the90 THE GOVERNMENTS OF GREECE.Close of the Independence of the Greek Nation." 4 vols. , Englishtranslation . London and New York.Oman, C. W. C., " A History of Greece from the Earliest Times to theDeath of Alexander the Great." Fifth edition . The best succinctaccount prepared since the discovery of Aristotle's " Constitution ofAthens. " London and New York, 1895.III.THE GOVERNMENT OF ROME.160. The Ancient Roman Kingdom.— At no period before thatof the Empire was the government of Rome radically unlike thegovernments of Greece; in their earliest stages the resemblancebetween Grecian and Roman governments was a resemblance ofdetails as well as of general pattern. Homer's account of thepatriarchal presidencies of Greece may serve as a sufficientlyaccurate picture of the primitive Roman monarchy. Kingship,it is true, was much less strictly hereditary in Rome than inGreece; the Roman kings were not only of several families, buteven, tradition says, of different nationalities: and they wereelected, not born, to their function. The functions of the Romankings, however, and the government over which they presided ,would have seemed most natural and regular to a contemporaryGreek observer. The king was high priest of the nation, itsgeneral, and its judge. He was associated with a council, -aSenate, composed of heads of families; for the Roman state,like the Greek, was a confederation of gentes, curies, and tribes;and the decisions of king and council were heard by a generalassembly (comitia) of all the men of the curies. There is nothing in all this to call for new comment; we have seen it all inGreece (secs. 44-52) , -except the method of succession to thethrone. Upon the death of a king, in Rome, a council of all thefathers of the gentes chose an interrex, who was to hold officefor five days; the interrex named a successor; the successor, takingcounsel with the fathers, named a king; and the comitia confirmed the choice.-161. Leading Peculiarity of Roman Constitutional Development.-This primitive constitution completed its resemblance to those9192 THE GOVERNMENT OF ROME.of Greece by beginning very early to fall to pieces. But the wayRome took to alter her institutions was in some respects peculiarlyRoman. The Romans never looked revolution straight in theface and acknowledged it to be revolution. They pared theirconstitution down, or grafted upon it, so that no change was sudden, but all alteration apparently mere normal growth, inducedby thoughtful husbandry. They could always fancy that theoriginal trunk was still standing, full of its first sap. No onewas ever given leave to reconstruct the constitution like a Solonor a Cleisthenes. Reforms, however, were planted in the seed atvarious times which we can now see very clearly to have been thebeginnings of slow changes destined to be entirely accomplishedonly in the fulness of time.162. The Reforms of Servius Tullius. -- - Thus a change such asSolon brought about in Athens was set afoot in Rome by themilitary policy of Servius Tullius, one of the latest and greatestkings of the ancient city. It was necessary to strengthen thearmy, which had been drawn hitherto from the three antiquetribes which made up the full citizenship of privilege within thecity, a thousand from each tribe. It was impolitic to attempt toadd to the number of tribes; a very jealous sense of privilege onthe part of the patrician classes stood in the way of that; and yetit was not sufficient to add to the force each tribe must supply.The city had drawn to itself, as time went by, new elementsof population: in addition to the patrician (the offspring of thepatres, or fathers, of the ancient citizenship), growing numbers of' plebeians,' outsiders attracted to the city by its commerce, besides men a great many, derived one can hardly say whence, who,because not of the old blood of the citizenship, were ranked as' clients ,' dependents upon the greater families. Above all, therewas the already quite numerous body of those who had once beenthe free citizens of neighbor towns now conquered and incorporated within the Roman state. These non-patrician classesmust be included if the full force of the state was to be put intoits array; and Servius resolved to found the organization of thearmed levy no longer upon the old tribes and patrician privilege, but upon the economic basis of wealth. It seemed tohim wise not only to increase the public force, but also to makeTHE GOVERNMENT OF ROME. 93a place of service, and, if might be, of privilege too, for theplebeians.163. The Centuries. He divided the people, accordingly,whether patricians or plebeians, into five property classes, to eachof which he assigned military duties proportioned to its meansfor self-equipment for the field . From the first class were to bedrawn eighteen centuries (hundreds) of horsem*n and eightycenturies of footmen; from the second, third, and fourth twentycenturies each, of footmen; from the fifth thirty centuries. Thosewho did not have property enough to come within the classificationat all were drawn upon for five centuries of mechanics, musicians,and servants. The centuries of the several classes differed intheir armament and equipment. Every citizen was liable formilitary service from his seventeenth to his fiftieth year; but thelevy was equally divided into seniores and juniores: the older menformed the city's guard, the younger made up the army destinedfor the field.Having fixed the basis of wealth upon which the military levyshould be made, Servius gave the new organization a territorialarrangement also, separating the city's territory into four districts, the Palatine, the Esquiline, the Suburan, and the Colline,each a district lying in part within the city, but embracing alsorural areas as well. To these territorial districts he did not hesitate to give the name Tribes. Outside their limits the peoplewere set apart into a number of smaller rural districts (pagi), towhich subsequently the name Tribes also fell: and these as wellas the Tribes of the city henceforth served as very importantunits in the administration of the little state's affairs.164. The Ancient Constitution. —The primary object of theseadministrative changes was no doubt military efficiency. Serviuswished to draw the whole strength of the city to its army, andall its wealth to the payment of the military tax. But a deeperpurpose lay underneath, and in the end a radical constitutionalchange was effected . The new districts more and more becamethe habitual units of administration; and the host of armed centuries became a governing assembly. Until Servius thus reorganized the army, the Roman constitution had known but twoauthoritative bodies, the Senate and the Comitia curiata. The94 THE GOVERNMENT OF ROME.from each gens Senate was the great Council of the ' Fathers ,'a representative. The king chose, indeed, whom he should callfrom each gens to a seat in the Senate; but custom and everyforce of opinion made it incumbent upon him to choose men ofripe years and men who were really leaders in their severalgentes, and the constitution of the Senate still bore distinct tracesof the old days in which it had been made up of chieftains andhad served no king. The king and the Senate constituted theadministration of the city-state, the people had no assembly savethat of the curies, to which all might come, even plebeians, nodoubt, as lookers on, but in which only men of patrician bloodcould vote, and in which there could be no voting except upon.such matters as came ready from the Senate. The curies were theimmemorial sub-divisions of the ancient tribes, for each tribe tencuries. Their assembly was called only to sanction the election ofa king, already made by the interrex and the Senate; to approveradical changes of law; to vote upon treaties and declarations ofwar, witness such solemn legal transactions as the adoption ofheirs into patrician houses, or to receive foreigners into the Romanbody. Only the king or the interrex could summon it; it couldvote only upon business prepared for it by the Senate; its votecould be only Aye or No; it was only the witnessing people, andhad no initiative part in shaping the affairs of the state: king andSenate constituted the government, the king master, the Senatea council whose advice he must ask even though he should notheed it.165. The Comitia Centuriata. The Servian reforms addedanother assembly, and a more democratic. The centuries cametogether, upon the summons of the trumpet, not within the citybut without its walls, upon the Campus Martius, as if for thefield, with banners lifted and with arms in their hands. Butthey were the picked men of the city and they were drawn fromall classes, plebeians as well as patricians; it was not to be expected of them as free men that they should fight without takingcounsel, and Servius himself was not loath that they should havea voice in affairs . He had looked to see the plebeians enabledby this new organization to act like burgesses as well as likesoldiers, and it was no doubt a thing he had foreseen that theTHE GOVERNMENT OF ROME. 95-centuries should come in time to constitute one of the authoritative bodies of the state, a new assembly. So it turned out.They became a part of the machinery of election and legislation ,as the Centuriate Assembly, the Comitia Centuriata, beginningvery promptly to absorb important functions of many kinds, —the choice of magistrates, the decision of questions of war andpeace, and the regulation of many another matter hitherto leftwith the elder and less democratic assembly of the curies. Anew political power had sprung up with the reform of the armyand revision of the tax roll .-166. Beginnings of the Republic. The line of Roman kings.came to an end, and the Republic was inaugurated at almost thevery moment when Cleisthenes was effecting his popular reformsin the institutions of Athens. But it ought to be kept clearly inmind that a republic was inaugurated in Rome in 509 B.C. , notin an Athenian or modern, but only in a Roman, sense. As Ihave said, the Romans never made revolutions out of hand;they only grew them, from very slowly germinating seed. Thechange made in 509 was scarcely greater than was the changeeffected in Athens some two centuries earlier by substitutingannual archons for life archons. Two consuls, to be chosenannually by the Comitia Centuriata, were substituted for thekings, who had grown insolent in the person of Tarquin; and anewly created high priest, dubbed Rex Sacrorum, received thereligious prerogatives of supplanted royalty, that was all . Theregal functions quietly passed to the joint exercise of the consuls,and the right of electing to the chief magistracy passed away fromthe curies, who had elected the kings. In all other respects theconstitution kept close to the lines of its original forms, only theSenate receiving increase of power.-167. The Consuls. That the change was slight the powers ofthe consuls bore abundant witness. Two consuls were chosen,and doubtless a practical division of duties was arranged betweenthem from the first; but each consul was in fullest measure king,and master of the state. The consuls were selected by theComitia Centuriata, but they received their imperium, their unstinted gift of kingly authority, from the Comitia Curiata, as thekings had received it before them. The limitation of their power96 THE GOVERNMENT OF ROME.lay only in its division and in the shortness of their term ofoffice. Each consul was supreme, and the power of the one offsetthat of the other. Since each could check and defeat the purposes of the other by the exercise of an absolute authority, theycould act only by agreement. Neither could indulge his personalwhim or safely pursue any private aim. Their term, moreover,was but for a single year. They might, indeed, being sovereign,refuse to quit their office or resign their imperium; no man couldgainsay them while they kept it; but it was neither politic norsafe to defy their fellow burgesses in such a fashion, and onceout of office they were amenable to the law.168. Like a king, or rather like an interrex, a consul couldname his own successor; but the Comitia Centuriata claimed andexercised the right to decide upon whom the choice should fall,and consuls had to content themselves with an occasional vetoupon its selections. The imperium, moreover, had its civil side,and its military. Upon the absolute power of the consul at thehead of the army and in the field the law did not venture to impose any restraint; but upon his civil power this limitation waslaid, almost from the first, that with regard to every sentence heshould utter in the plenitude of his power against the life orlegal status of any citizen, an appeal should lie to the people intheir assembly. His complete mastery lay in this: either consulcould, with the consent of the Senate, name a Dictator, who forsix months should be the state's absolute monarch, his imperiumrestrained in nothing, both consuls ousted for the time from theirpower, the state and all its resources, the lives and fortunes of itscitizens, put at his disposal in all things. It was in this way acrisis might be met, if the consuls came to a deadlock, or thedangers to the state be avoided, should turmoil or insurrectionor invasion threaten it.169. Quaestores parricidii were early associated with the consuls,at first as their nominees, afterwards by popular election, to assume apractically independent exercise of the criminal jurisdiction includedin the imperium, and to undertake the care of the state chest.170. Patrician Control. There was here no democraticstructure of government. The patrician classes practically con-THE GOVERNMENT OF ROME.97---trolled in all things. The Comitia Curiata, which conferred theimperium, was a patrician assembly. The Comitia Centuriata,which chose the consuls, voted by centuries; and a majority ofthe centuries were drawn from the patrician classes, at anyrate from those who had wealth and were in the patrician interest, so that only patricians were chosen magistrates. Aboveall, the Senate, the very seat of patrician privilege, kept upon allthings a hand of control which could not be shaken off. Itassumed to supervise all choices of the more popular assemblies,and in the field of administration was at all times practically-supreme.171. The Senate. -The Roman Senate is singular amongbodies of its own kind in having had no clearly defined province.From the time when consuls were first chosen till the end of thesecond Punic war (B.C. 509-201 ) it was virtually, so far as theconception of policy went, the government of Rome. Its counsels determined the whole action of the state. And yet not byany very tangible legal right. It remained till the last what ithad been from the first, -only a consultative body whose adviceany magistrate might ask, but whose advice no magistrate wasbound to take. It was associated with the consuls as it had beenwith the kings, to give them such counsel as they should callupon it to give. Its powers were, strictly speaking, powers ofconsent rather than of origination. It exercised auctoritas, thepower to forbid legislation of which it did not approve, and consilium , the right to act, whether by way of approval or amendment, upon executive proposals. It had full control, moreover,of the public finances, having the right to determine the taxesand the manner of their collection, to vote the appropriations,and to audit the accounts of the treasury officials. It at firstclaimed and exercised the right to approve or disapprove, as itchose, all laws and all elections upon which the people'sassemblies acted. It had a hand in all things, in periods ofstress or peril setting all laws aside, and for the rest giving shapeand consistency to the business of the state, and the restraintof old practice. And yet its only real authority was that ofopinion. It was strong only so long as it went with the mosmajorum.Thr98 THE GOVERNMENT OF ROME.172. Composition of the Senate. The number of senators was,throughout most of Roman history, limited to three hundred , the completenumber of gentes under the kings. Their tenure was for life, providedthey were not deprived of their rank by the censor. In the regal periodthey were chosen by the king, his summons constituting them members(sec. 164); and when consuls succeeded to the kingly functions, they,like the kings, filled vacancies in the Senate. A law of about B.C. 351 ,however, gave the right to a seat in the Senate to every one who hadbeen consul, prætor, or curule ædile; and vacancies over and above thenumber which such ex-officials sufficed to fill, were thereafter filled byappointment of the censor.173. Senate's Character and Influence . Until the comparatively late times when the Senate had been corrupted by thetemptations incident to the administration of a vast empire, andhad proved itself as incapable as any other advisory debatingclub of managing foreign conquests, it had many distinct advantages over any other authority that might have felt inclined tocompete with it. Magistrates held their offices only for one year,and were generally drawn from the classes strongest in the Senate;the various assemblies of the people (secs. 165, 181 , 186, 205, 206)had no permanent organization , and met only occasionally, whenthe proper magistrate saw fit to summon them; the Senate alonehad continuous life and effective readiness for action. With itslife membership it was immortal; containing the first statesmen,lawyers, and soldiers of the state, it had a knowledge of affairsand traditions of authority, of achievement, and of sustained andconcerted purpose such as magistrates, who held their offices butfor a twelvemonth, and meetings of the people, which cametogether but for a day, could not possibly have. It was compact,practised, clear of aim, resolved, confident. The vagueness of itsfunctions was, therefore, an advantage rather than a drawbackto it. It undertook every task that others seemed disposed toneglect; it stretched out its hand and appropriated every function that was lying idle. If its right to any particular functionwas seriously challenged, it could quietly disclaim it, —to takeit up again when the challenger had passed on. The consuls andother magistrates could ignore its determinations at will, andfollow their own independent purposes or the wishes of thepopular assemblies. The Senate was in theory only their ser-THE GOVERNMENT OF ROME. 99vant, to speak when bidden. But the Senate's advice was commonly indispensable; nowhere else were such coherent views orsuch informed purposes to be found; nowhere else so much experience, wealth, influence. It was too serviceable to be decisivelyquarrelled with: it would jeopard their own careers to defy it.In all seasons of quiet in home affairs it accordingly had its ownway with undisturbed regularity.174. Presidency of the Senate in Constitutional Change. TheRoman constitution was, by its own slow processes, to undergomany radical changes, but the Senate was to remain, the while,almost unchanged. New magistracies were to be created, oldmagistracies altered; new assemblies were to come into existence, old assemblies were to lose or change their rôles in thestate; the body of the law was to experience many a transformation, but the Senate was all the while to preside, mediate, control,-the most elastic, and therefore the most durable part of thesingular constitution . All the strains were to come upon it, butit could take them without serious injury, and was arbiter in allthings.175. The Oppression of the Plebeians. Change came firstfrom the just discontent of the plebeians, and came before therepublic had been in operation so much as sixteen years. Thekings had at least been sovereigns alike of patricians andof plebeians, masters, but not always partisans; and once andagain, a king like Servius Tullius had sought to strengthen thewhole state by the elevation of the plebeians to a proper placeof influence. But the new government was the government of aclass, and was systematic in making the most of its power,whether in the Senate or through the magistracies, for thebenefit of a single order in the state. No one but a freeholdercould be enrolled in a tribe and vote in the assemblies, and thepatricians saw to it that the body of freeholders should not beadded to. There was land enough, and that at the disposal ofthe state. For Rome was already steadily making conquestsabout her, and the conquered land became in large part agerpublicus, subject to be allotted as the state chose. But poor mennot of the privileged order were not given their share. Thewealthy families who ruled in the Senate and through the magis-100 THE GOVERNMENT OF ROME.tracies, themselves took up the new lands not only, -forgettingto pay the legal rent, but even enclosed the pastures hithertocommon, and left the peasant farmer neither arable land enoughnor any food for his beast.War, moreover, constantly drew the able-bodied of every classaway from home, and the small farmer was only too apt upon hisreturn to find his house burned and his fields laid waste by theenemy, and debt staring him in the face. Debt meant slavery,slavery to some patrician to whom he must resort for money.The law of debt in Rome was as harsh and pitiless as that whichSolon had undertaken to reform in Athens (secs. 127-129) . Aman who did not pay his debt became his creditor's prisoner andslave; and patrician magistrates were quick and inexorable intheir execution of the utmost penalties. The law, moreover, wasnowhere to be read or learned, save in the judgments of patricianmagistrates or the warnings of patrician priests, and its executionwas daily made arbitrary as well as harsh. There was no privateright, at any rate among plebeians, to offset the terrible public power that lay in the imperium of the consuls. The fortunesalike of war and of politics brought nothing but loss upon theplebeian, nothing but gain, it sometimes seemed, to the patrician;and the plebeians were not slow to perceive that it was time tohave done with submission.176. Strength of the Plebs. That the plebeians had long beengrowing to formidable numbers with the growth of the city itselfthere is abundant proof in the uneasy movements of politics longere the power of the kings had reached its term . Whether ornot it be true that Rome, because seated in a district which wasneither fertile nor healthful enough to have been chosen for anyother purpose, was at first an asylum for the outlawed and desperate characters of Italy, it is reasonably certain that her population had from the beginning a very miscellaneous, heterogeneouscomposition. Possibly the gentes which claimed to be the onlygentes that had fathers (patres), and consequently the only patricians, were themselves of rather artificial make-up; and it isquite conceivable that those who came later into the Romancircle, although not less naturally but only more recently formedinto families of the orthodox pattern, were relegated to a rank ofTHE GOVERNMENT OF ROME. 101inferior dignity in the state, even if not excluded from a place inthe curies alongside of the patricians, and so ranked as plebeians.There were also many who had come to Rome as aliens, contentat 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 whohad in time given birth to a non-citizen class , which had forgottenits alien extraction and had become identified with the city, butwhich had made little advance beyond the threshold of the state.These, too, were plebeians. The chief part of the class, however,was derived from the conquered Latins settled in Roman territory since the times of Tullius Hostilius and Ancus Martius. Byone process or another the city had become mistress of a greatbody of people from whom she drew no small part of her strengthand her wealth, and who were yet not citizens but outsiders inevery point of privilege. Servius Tullius had enrolled them inthe army, made them subject to the military tax, and given thema place in the Comitia centuriata; and so long as the throne hadstood they had found neither their burdens nor their disabilitiesintolerable. But now they felt full service without full privilege.to be irksome beyond measure. Economic distress proved a veryenlightening teacher; and they were both too numerous and toocertain of their wants to hesitate to act.177. Secession of the Plebs (B.c. 494) . They found theiropportunity in a time of war. Returned from a field of victoryover the Volscians, they remained armed and encamped outsidethe city's walls until their demands for protection against thesavage law of debt and the pitiless rigor of the magistrates shouldbe laid before the Senate by their commander, who agreed to betheir spokesman. When the Senate refused their petition, theybroke into open revolt, turned their backs upon their general,withdrew to the " Sacred Mount," which lay between the Anioand the Tiber, and declared that they would there establish anindependent and rival commonwealth of their own. The Senatespeedily came to its senses, opened negotiations once more, andquickly enough entered into a binding covenant which shouldbring the people to their allegiance again.178. Tribunes of the People. It was stipulated that landshould be provided out of the public domain upon which to place102 THE GOVERNMENT OF ROME.colonies of the poor farmers who had hitherto been left to starveor else accept the slavery of debt. But that was a mere measureof temporary relief. The defence of the plebeians against thetyranny of the patrician magistrates was provided for in a muchmore effectual manner, which had in it, as usual, the seeds ofradical constitutional change. It was agreed that a new officeshould be created: that the plebeians, voting in their own curies,should elect two tribunes whom the law should recognize as theirauthoritative protectors against all magistrates, of whatever rankor power. The tribunes were to be invested with the right to suspend the judgment of any magistrate upon a plebeian by peremptory veto, should they regard the judgment as in any way a breachof plebeian privilege. That their persons were to be inviolablewas made the subject of a special compact (the lex sacrata) whichdenounced a curse upon any one who should interfere with themin the discharge of their functions.179. The concession seemed a small one: the tribune's rightof authoritative " intercession " was meant to prevent nothingmore than violations of the just privileges of any plebeian whomight seek redress or resort to him for succor. But a very greatauthority lurked in that. The tribune was himself to judge whenhe should intervene, and his veto was imperative against any,even the proudest, consul. It was as if the plebeians had actuallyestablished their independent community after all, within the cityinstead of on the Sacred Mount, if not for action, at any rate fordefence and self-protection. The power of the tribunes, moreover,grew as they used it. They were prompt to claim judicial prerogatives the right to impose fines upon those who crossed theirauthority, and the right to arrest, imprison, it might be condemn,even to death, the consul himself. The law gave them no suchpowers, and they, of course, did not begin by exercising them; butsuch rights presently came to seem a natural enough inference fromthe powers the law did confer; it became more and more difficult towithstand the tribunes as the pretensions of the plebeians advancedfrom step to step in the long constitutional struggle which ensued;and a slow usurpation brought the tribunes what they wished.

180. The tribune's authority did not extend beyond a mile from thecity's limits. Beyond that the imperium of the consul was as absolute asTHE GOVERNMENT OF ROME. 103ever. A tribune's intercession, moreover, could be uttered only in person:it was necessary, therefore, that a tribune should be always at hand withinthe city, and that the door of his house should stand unlocked day andnight, in order that no man might fail of his succor when it was needed.The name tribune was not a new one. The old patrician tribes hadhad each its tribune, its representative in all civil , religious, and militaryaffairs, its magistrate and commander. The tribes formed by Servius, too,and the country districts which resulted from the alterations which heinstituted , had in their turn been put under tribunes, who acted a chiefpart in many important matters of administration. But the tribunes of thepeople bore an old name with a new meaning.--181. A New Assembly. Another momentous consequence ofthe changes thus effected showed itself in the springing up of anew assembly which the tribunes assumed the right to summon,an assembly of exclusively plebeian make-up, a Concilium plebis, inwhich the tribunes were elected, to which appeals could be takenin the matter of the fines imposed by the tribunes, and in whichcounsel could be held upon any matter the plebeian magistrateschose to propound. The plebeians had long had their own tribesand curies. Their curies had, no doubt, been reckoned with thoseof the patricians in the Comitia curiata since the coming in of theRepublic. But in this new body they drew apart and completedtheir separate organization as a distinct order in the state . It wasthe beginning of a new series of changes. For a time the resolutions of these assemblies bound no one but the plebeians themselves; but, as plebeian power grew, an authority which wasvirtually legislative accrued to their tribal council, and thebalance of power in the state was definitively shifted.182. The Public Land. - But these changes within the city didnot settle the question of the public lands. The poor farmer wasstill shut in to his petty farm of an acre and a quarter, and deniedhis ancient right of common and of wood; patricians and theirclients continued to take possession on all hands of what shouldhave been fairly allotted amongst all; and poverty looked as inevitable a thing as ever. For twenty-seven years after the greatsecession to the Sacred Mount did the tribunes of the people pressa persistent agitation against the unjust system, deterred neitherby intimidation nor by force, seeing one man done to death underthe forms of law and another assassinated outright for their bold-104 THE GOVERNMENT OF ROME.ness in urging a juster way, and then ( B.c. 467) obtained only agift of lands to some of the poorer Roman farmers upon the establishment of a Latin colony at Antium. It required eleven moreyears of agitation to get an apportionment of building lots for thelower classes, upon the Aventine ( B.C. 456); and there the matterrested for a little, other things taking precedence.183. The Plebeians and the Publication of the Law (B.c. 462–451 ) . The struggle between the orders, it turned out, was to bethe moving cause of almost all legal and constitutional change.The assignment of building lots on the Aventine to men of thepoorer classes had been agreed to by the Senate as a concessionto stave off much graver matters, which the tribunes were pressing. Since the year 462, they had been urging the appointmentof a commission, and a commission of plebeians at that, tocodify and publish the laws, so that all men might certainly knowwith what privileges and under what penalties they lived. Thelaw was known only to the patricians. Its rules and practiceswere a sacred tradition, mixed of religious belief and civil usage,and handed on, like a secret cult, through magistrates and priests.There could be no systematic or effectual defence of the plebeiansagainst an arbitrary and tyrannous administration of the law solong as only the magistrate, and he the representative of a class,knew what the law was. The publication of the law was thecondition precedent to any due establishment or observation ofrights, at any rate for those who were not of the privileged orderto which the law privately belonged.184. The Decemvirs (B.c. 451-449) . For ten years the Senate fought the reasonable project, granting first an increase in thenumber of the tribunes, then an allotment of land on the Aventine, and finally, a limitation of the amount of the fines which aconsul could impose; but the steady agitators, whom they wereopposing, forced them at length to yield. It was agreed that acommission of ten should be appointed, for the usual term of ayear, to codify and publish the law. All other magistracies wereto be for the time suspended , in accordance with the usual Romancustom in such matters of extraordinary action, in order that thedecemvirs should be supreme in all things until their special taskshould be accomplished . The plebeians, on their part, agreed toTHE GOVERNMENT OF ROME. 105give up the tribunate in exchange for a determinate code of law.The patricians managed to exclude plebeians from the commission, and filled it with men of their own order; but its work wasundertaken and executed in good faith. Within their term theycompleted ten Tables of the law, which were approved by theassembly of centuries, engraved upon brazen tablets, and set upin the Forum. But that did not finish the work of codification:the year had not sufficed to complete the task. It was necessaryto renew the arrangement for still another year. But the secondyear did not prove like the first. Appius Claudius had tastedabsolute authority with a keen relish as president of the firstcommission, and now, a patrician turned demagogue, leagued himself with certain of the less scrupulous plebeian leaders to perpetuate his power. He obtained the selection of men of a subservientsort to be his colleagues on the second year's commission, -three of them (some say five ) plebeians, and led them, whenonce they were safely installed in office, to turn despots with him,in despite of law and right. When their year of office was out,.they declared that their work was not done, and refused to giveplace to the regular magistrates of the constitution . They had,in fact, completed the two additional tables which the law hadlacked; but they had not submitted them to the people, and theydid not mean to govern by any law at all.-185. Second Secession of the Plebs.— It did not take such menlong to carry things to such a pitch as to provoke rebellion. Thearmy gathered in its camp without the city, marched thence tothe Aventine, and there elected tribunes once more to be theirleaders, instead of the decemvirs. When they saw that even thenthe Senate made no move to oust the decemvirs, they marched asecond time to the Sacred Mount and again threatened to builda city there for themselves alone. They were not won back totheir allegiance until the tribunate had been formally restored,the decemvirs brought to a reckoning, the right of appeal from allmagistrates once more guaranteed, and a full amnesty accorded.Nor did change end there. Through L. Valerius Potitus andM. Horatius Barbatus, whom the Senate had commissioned totreat with them, the plebeian leaders forced the adoption of moreradical measures than the mere restoration of what they had re-106 THE GOVERNMENT OF ROME.signed to secure the publication of the law. Not only was theright of appeal restored: it was strengthened, and made to applyeven as against a dictator. Not only was the tribunate set upagain, and the inviolability of the tribunes secured by the solemnsentences of a law binding upon all classes alike, but the tribuneswere given the right to attend the debates of the Senate, and began,as it turned out, before many years went by, to use their right ofintercession even against its decrees. More significant still, thepeople were henceforth to have legislative power: the resolutionsof the people were to have the binding force of law, -not theresolutions of the plebeians alone, indeed, but the resolutionsof the whole body of freemen, reckoned without distinctionof class, in which the plebeians were to be secure of a safe preponderance of numbers. Such were the Valerio- Horatian laws ofB.C. 449.186. The Comitia Tributa. That meant the creation of a newassembly. The tribunes were still to have the right to summonConcilia plebis, in which the distinctive officers of their order, thetribunes, and the ædiles and judges who were their subordinates,were to be chosen, and to which appeals from the judicial decisionsof these officers were still to be carried; but there was to beanother assembly besides, in which the whole people was to begathered, assembling in its tribes, and which was to be knownaccordingly as the Comitia tributa. Over its sessions a patricianmagistrate was to preside. It was to elect the questors towhom the care of the city's treasury was committed. Its resolutions were to have the force of law. And so still anotherpiece was added to the complex machinery of the singularconstitution. Fri187. The XII. Tables .-The law of the XII. Tables, whichcame from the hands of the two decemviral commissions, contained provisions both new and old , being marked throughout bya spirit of compromise and concession. The original proposal ofthe plebeians that the law should be written and published hadinvolved no avowed purpose of change; but the work as actuallyaccomplished, though it contained the old law, showed it modifiedat many points. There was even distinct evidence of Greek influence, and there always lingered at Rome a very definite tradi-THE GOVERNMENT OF ROME. 107tion that two years before the appointment of the first decemviralcommission, an embassy had been sent to Greece to examine thefamous laws of Solon at Athens, and that Hermodorus, a learnedEphesian, had returned with the ambassadors to assist at thecodification.188. The Tables borrowed the very words of the laws of Solonin some matters of detail, for example with regard to the restriction of expense at funerals, and throughout followed Greek formsin the statement of the law; but no constitutional arrangementswere borrowed, and the stiff fibre of Roman practice showed itselfthe whole code through. Apart from such matters as the right ofappeal from the decisions of magistrates, the punishment ofjudicial corruption by death, the prohibition of laws directedagainst private individuals, the assignment of criminal cases tothe jurisdiction of the Comitia centuriata, and the regulation thatmagistrates, in citing resolutions of the people in justification ofwhat they sought to do, should cite the latest and not choose asthey liked among new and old, its text was given up, for the mostpart, to private law. Insolvent debtors were to be at the mercyof their creditors as before, but interest was not to exceed ten percent. , and usury was to be punished. The absolute power of headsof families over their households (patria potestas) was a littlesoftened. Intermarriage between patricians and plebeians wasforbidden, as it had always been, but a process of civil marriagewas added to the once exclusive ceremonial in which the familyreligion of the patricians had so long been embodied . Wills, itwas provided, could henceforth be made, not only by declarationin the assembly of the curies, as heretofore, but also by means ofa form of fictitious sale. Libel and false witness were to bepunished with death. It was significant, too, that voluntaryassociations (collegia ) , such as plebeians were wont to form, weresecured in the right to make their own rules of self-government,provided only they did not transgress the law of the city. Thisalso was a law drawn from Solon's legislation .The XII. tables and the genesis and development of Roman law willbe further and more particularly discussed in the next chapter.189. War and Its Constitutional Effects. Rome was deniedthe exclusively municipal life for which her forms of government108 THE GOVERNMENT OF ROME.fitted her, and which was vouchsafed to Athens, Sparta, and theother cities snugly ensconced within their little valley nestsamong the mountains of Greece. She could not live a separatelife. There were rival towns all about her on the plains ofLatium, and beyond the Tiber in Etruria, which she was obligedeither to conquer or submit to. When they had been broughtunder her supremacy, she had still only gained new hostile.neighbors, to whom her territory was equally open. She seemedcompelled for the sake of her own peace to conquer all of Italy.Italy subdued, she found herself separated by only a narrowstrait from Sicily. Drawn into that tempting island by policyand ambition, she came face to face with the power of Carthage.In subduing Carthage she was led to occupy Spain. She hadbeen caught in a tremendous drift of compelling fortune. Notuntil she had circled the Mediterranean with her conquests andhad sent her armies deep into the three continents that touch itsinternational waters, did she pause in the momentous undertaking of bringing the whole world to the feet of a single city. Andher constitutional life itself felt every stroke of these conquests .This constant stress of war was of the deepest consequence to herpolitics, especially in enabling the plebeians to break into thepale of political privilege much earlier than they might otherwise,(have done so190. The Equalization of the Orders. During the strugglewhich had resulted in the establishment of the tribunate, thecreation of a plebeian assembly and an assembly of tribes, andthe publication and amelioration of the law in the XII. Tables,the fortunes of war had ebbed and flowed unsteadily. It wasbecause they could not afford to have the army discontented orrebellious that the Senate had felt at every crisis the need toyield to the demands of the plebeians, who constituted so indispensable a part of its rank and file. It was because wardevastated their fields and accentuated their poverty that theplebeians moved so persistently and oftentimes so turbulentlyfor relief against the tyranny of the magistrates and for a justshare in the use of the public lands. At length sixty years ofstruggle had brought them at least an independent corporatestanding and privilege in the state and a clear law to live under.THE GOVERNMENT OF ROME. 109They could act in their own assemblies, rely upon the protectionof their own officers, and deem themselves a recognized party toevery great transaction of politics. Moreover, within five yearsof the decemviral legislation they had laid the axe at the veryroot of the principle upon which patrician ascendency rested. Inthe year B.C. 445 the Senate found itself obliged to assent toa vote of the Comitia tributa ( a plebiscitum, such a vote wascalled ) that henceforth intermarriages between patricians andplebeians should be lawful. At one blow such a law struck awaythe pretence that religion forbade any but men of the pure andancient blood of the city's fathers to serve in the great and intimate offices of the state or approach the gods in the taking ofthe auspices. The law was henceforth to know nothing of purepatrician blood .191. The Contest for Political Office - . The rank and file ofthe plebeians, being poor men, not likely in any case to gaingreat place or power in the state, would have rested contentwith such a conclusion to their contest with the patricians,could they have got, besides, an assured economic equality in respect of the usufruct of the public domain. The richer plebeians, on the contrary, seeing themselves shut out from nothing butpower, desired that above all things, and set themselves to get it.The very year the restriction upon marriage between the orderswas removed ( B.c. 445 ) they wrung from the Senate a concession which seemed to promise a great deal. Each year, it wasagreed, the Senate should determine by a special vote whetherthe chief administration of the city should be entrusted to consuls or to a board of six military tribunes, and, if to tribunes,plebeians were to be eligible for the office. But for nearly sixtyyears, though the new board was frequently put in the place ofthe consuls, the election of plebeians was prevented . In the yearB.C. 443 a new office was created, the office of censor, to be openonly to patricians, so fearful were the privileged order that theplebeians might make their way into the military tribuneship inspite of them. There were to be two censors, and they were tohave charge of the numbering and enrolling of the citizens.B.C. 441 , besides, the consular right to manage the military chestwas transferred to a board of four patrician quaestors, lest that110 THE GOVERNMENT OF ROME.matter should fall into the hands of plebeian magistrates. Butsuch precautions proved for a long time unnecessary. Not untilB.C. 400 did the plebeians secure a majority upon the board ofmilitary tribunes, who were elected by the Comitia centuriata;and they had got three out of the four quæstorships nine yearsearlier ( B.c. 409 ) in the elections held in the Comitia tributa.In each assembly a patrician magistrate presided. The presidingmagistrate had the right to refuse to receive votes for certaincandidates, and could use the power very unscrupulously forpersonal or partisan purposes when he dared . The Senate reserved the right to disallow elections of which it disapproved.In the last resort the priests could declare an election irregularand void, alleging some breach of religious observance or somesinister aspect of the portents. By subtlety, trick, or power,plebeians had been kept out the fifty odd years through, war,meanwhile, constantly intruding its interruptions and drawingoff the strain of internal excitements.-192. The Licinian Laws ( B.c. 367) . — The sack of the city bythe Gauls (B.c. 390) interrupted the normal course of politics fora little; the lack of union among the plebeians threatened to turnit aside altogether. The poorer classes wanted only economicreforms, and were indifferent about the offices; the richer plebeians wanted political power, in addition to the social equalityalready won, and felt that they had economic advantage enough.The tribunes C. Licinius Stolo and L. Sextius had the statesmanship to draw the two elements of their party together to thesupport of a set of measures which promised to advance theclaims of both. They demanded that a limit be put by law uponthe amount of the public land which any one citizen could hold,in order that there might be some for all, to the breaking downof the hateful monopoly of the patrician landowners; that thenumber of cattle and sheep which any one owner could put uponthe common pastures should also be definitely restricted; andthat henceforth, instead of the makeshift of occasional boards ofmilitary tribunes, there should be consuls chosen every year, asof old, one of whom should in every case be a plebeian. For tenyears the Senate stubbornly resisted (B.c. 377-367) . When atlast it saw itself obliged to yield, it took care (B.C. 366) to curtailTHE GOVERNMENT OF ROME. 111the power of the consularofficestillfurtherby takingfromit yetanotherpiece. Theycreatedthe officeof prætor, andtransferredto it the administrationof justice, hithertooneof thechiefprerogativesof theconsularoffice, providingat the sametimethat none but patriciansshouldbe eligibleto be chosento thenew office. Withina generation, however, the prætorshiptoo hadbeen won by a plebeian(B.c. 337) . Thedictatorshiphadbeengivento a plebeianin 356, andthe censorshipin 351 .193. Subdivision of Offices. -There had been throughout but onemethod of defence against the growing pretensions of the plebeians: asthey approached complete access to a coveted office the importance of that office had been deliberately curtailed, by paring away its prerogativesand bestowing them upon officers newly created . But in the end thisproved no defence at all. One by one, each in its turn , the new officeswere filled by plebeians, until even the sacred colleges of the priesthoodwere no longer exclusively in patrician hands ( B.c. 300, lex Ogulnia) ,and the Pontifex Maximus was himself a plebeian ( B.c. 253) . A secondAppius Claudius (the same who made the Appian Way) , as censor, en- franchised tradesmen and artisans, assisted a mere clerk of the publicservice to a curule ædileship ( B.c. 304) , and joined this same clerk in thepublication of the legal calendar and the lists of legal formulæ, knowledge of which had hitherto been safely guarded confidential matter of tradition within the college of priests.-194. Supremacy of the Senate. The subdivision of officestended, singularly enough, to restore something like the originalconstitution of the Republic, by renewing the supremacy of theSenate. Other assemblies had multiplied and grown in functionand power. By a law of the year B.C. 339 the assent of theSenate to the resolutions of the people's assembly was made amere formality; by a law of the year B.C. 287 (the lex Hortensia)a like independent and binding force was given to the actions ofthe concilium plebis; and by alaw of 286 the Senate was obligedto agree beforehand to confer the imperium upon whatever officersthe Comitia should elect. But the very multiplicity of assembliesand the mere subdivision of functions amongst them only gave themore consequence to the great administrative council. The multiplying of offices had the same effect: business so dividedneeded the systematic supervision of a permanent council ofstate. The censors had been given the right (about B.C. 350) to112 THE GOVERNMENT OF ROME.fill out the roll of the Senate upon the occurrence of vacanciesin its life membership (a power which had until then belonged tothe consuls), and even to remove those who seemed unworthy;but a vote of the tribes (the lex Ovinia) had commanded thatchoice be made by the censors only from among the best men ofthe state. This had been interpreted to mean those whom thepeople had chosen to occupy the higher magistracies. And so ithappened that as the Senate came once more into its old functionsit tended to become more exclusively than ever an assembly ofex-magistrates; and the permanent council of state to whichthe acting magistrates looked for guidance was made up of thoseseasoned to the work of government by experience. Towardssuch a council the acting magistrates, with their now limitedpowers, their minutely subdivided imperium, necessarily stoodrelated, not as masters, but as servants; and a great day of powercame again to the Senate. Even the tribunes became its instruments. They were, indeed, given the right at last themselves toconvoke the Senate like any magistrate, and their right of intercession operated when they chose against it; but the Senate, inits turn, used the tribunes' right of intercession to check themagistrates, and their right to call together the popular assembliesto guide and influence the action of the people. The Senate'sopportunity had come back again, and, now that patrician pretension was killed, the opportunity could be greatly used.195. " The Senate alone could deal with the grave problems of war,foreign relations, and the provincial empire . The management of financedrifted naturally into its hands, for the untaxed burghers had no interestin controlling expenditure. Nor was it unworthy of its high position;the Senate was the author of Roman greatness. Superior to the House ofLords, for it was not, in theory, hereditary or exclusive , superior to theAthenian Boulé in its independence and authority, it represented at firstno one class, generation, or set of principles. As it consisted mainly ofex-magistrates , it was based indirectly on popular choice. It was, in fact,the fine flower of that great aristocracy which resulted from the fusion ofthe orders, and concentrated in itself the experience, the traditions, andthe statesmanship of Rome. Its consistent and tenacious , if narrowminded, patriotism had saved the state and built up the fabric of empire.Its members had served an apprenticeship in arms and politics, by landand sea, in the provinces and in the forum. They were called to theirplaces by the selection of the censors from among the chosen officers ofTHE GOVERNMENT OF ROME. 113the Republic. Debarred from commercial pursuits ( 218 B.C. ) , restrictedto the holding of land and the public service , they formed that professional governing class demanded at once by ancient political thinkers andthe increasing complexity of national business. ” 1196. Though it in fact ruled , the Senate remained in theory merely anadvisory body. It met upon the call of a magistrate, when its advice waswanted. The magistrate who had summoned it and who wished its advice presided over its session, and asked either for its vote upon a definiteproposition, or for the individual opinions of the several senators present,calling upon them by name and in the order of their one-time official rank.While it was greatest, until the end of the Republic indeed, the Senate hadneither secretary nor records. Its decisions were formulated and writtenoutin each case by the presiding magistrate, a committee of senators assisting.•197. The Government of Italy. - Rome had conquered Italyand come face to face with the Carthaginian at the straits ofSicily while her republican constitution took shape and the plebeians made their way to political privilege. She held her conquests together by no constitutional system, but by such bonds ofinterest or of fear or of power as she could devise in each case asit arose. Each conquered town or people obtained its own termsof submission. Roman military colonies dotted the country hereand there like garrisons. Roman armies moved quickly uponany threat of revolt. Senate and magistrates interfered as theypleased. All were obliged to make their contribution to theRoman treasury. But for the rest the subjugated towns andcommunities kept their own life and government, generally, as ifthey had been still independent. Rome did not send them governors, but only requisitions. Some, indeed, had been utterlyreduced and brought to a condition of virtual slavery; but mostwere left measurably free, and some enjoyed a sort of qualifiedRoman citizenship. There were very few made utterly dependent. They were dependencies, but not provinces. Many stoodin the honorable place of allies .198. It grew to be a danger, indeed, and a source of menace tothe state that the Italian communities had no definite place eitherof privilege or of subordination in the constitution. Their citizens came to be a new sort of plebeians, a new class which wasless than free, members of the Roman State so far as burdens¹ A History of Rome, by W. W. How and H. D. Leigh, p. 299.114 THE GOVERNMENT OF ROME.were concerned and every sort of service, and yet not enfranchised,held off from the privileges and the power which ought to goalong with the duties of membership. Their grievances, it turnedout, were to be a new ferment, a new leaven of agitation, restlessness, and change.thillippinces - 199. The Provinces. For the city's possessions outside Italyit was found necessary to devise a new system of oversight andgovernment, - and yet not a system, either, for Rome never invented systems, but a new set of practices and accommodations.A way to control each province was found as it was needed.Rome did not plan an empire; she drifted into her world-widesway. It was her first thought, as her conquests began to extendbeyond the bounds of Italy , simply to attach the conquered statesto herself by treaties of subordination or alliance or service, afterthe manner she had followed in Italy itself. The actual annexation and administration of foreign territories as provinces wasonly slowly forced upon her by circ*mstances. It was a policy,however, which she came more and more to relish as her rulingclasses came to a full appreciation of the spoils and the power itbrought them, and the erection of provinces came at length to bethe rule and not the exception . A confusing variety, indeed , continued to exist in the provinces, as elsewhere, in respect of thestatus of the several communities which had been brought underher sway. Some were suffered to retain a separateness and freedom which had but slight trace of subordination in it; and therewere cities not a few whose privileges expressly exempted themfrom the direct jurisdiction of the provincial authorities. Othersretained very considerable powers of self-government, notwithstanding the fact that taxes and burdens of many kinds markedtheir subjection to the imperial city. Not many had, while theRepublic lasted, a position of outright vassalage thrust uponthem, unless they were merely barbarous or utterly recalcitrant.But everywhere Rome had her officers of provincial administration: the governor of the province, the quaestor who acted as hiscolleague in the interest of the treasury, and the publicans towhom the collection of the taxes was farmed out, besides a greatretinue of the lesser officials who served these. The tendencywas always towards more and more harsh exactions, greater andTHE GOVERNMENT OF ROME. 115greater restrictions, more and more frequent and arbitrary interference. The system was practically anything the governor choseto make it. Jues England .200. Organization of Provincial Administration. " Province "meant, in the official usage of Rome, a range of power rather thana subjected district. It meant the sphere of a sovereign magistrate, and only gradually came to mean the region within whicha magistrate exercised his rule. Each province had its owncharacteristic districts and arrangements for local self-administration, fixed upon by a committee of senators appointed for the purpose. The governor had his staff of military and civil assistants ,his lieutenants, secretaries, clerks, attendants, interpreters, messengers, engineers, physicians, and priests, whose services werepaid for out of the public chest; besides clients and slaves asmany as he pleased, whom he took out at his own expense, thatis, at the expense of his subjects in the province. The quæstorswho were charged with the financial administration were nothis nominees like the rest, but officers elected in Rome itself andsent to the provinces instead of being kept for duty in the city.201. It was an attempt to stretch the constitution of the cityitself to cover the administration of distant possessions. Atfirst it had been arranged, simply that there should be additionalprætors chosen in Rome, some of whom should be sent to act asgovernors of provinces, while the rest were kept at home asusual for their accustomed administrative service. Then, whenprovinces multiplied, the Senate adopted the practice of extending the terms of consuls and prætors, from one year to two, andsending them for the second year to the provinces, as pro-consulsand pro-prætors. They carried with them to their new field ofauthority the absolute imperium with which they had always, intheory, been invested at home, and were restrained only by thegeneral administrative arrangements which the Senate had fixedupon their several provinces, and by their sense of justice or ofpolicy. Their government looked most like a system in thefield of the administration of the law. In his power to punishcrimes, the governor was very absolute; but in the enforcementof civil obligations very steady precedents grew up, and something like a system of law was woven out of the legal notions of116 THE GOVERNMENT OF ROME.the nations, amongst whom successive Roman governors hadpresided.202. Character of Provincial Administration. The radicalvice of the system was its irresponsibility and the spirit ofplunder to which it gave leave. Each governor was expected ,so cynical did opinion grow at Rome, to make his fortune in hisprovince, and that within the single year his authority lasted .Once away from the supervision of the tribunes and the criticismof assemblies and Senate, provincial governors were absolutelyirresponsible; save only that they were liable to trial for malfeasance in office, after the expiration of their terms of service,by jury-courts at Rome, which were, of course, out of sympathywith provincials and notoriously open to be bribed . In the city.itself consul and prætor were theoretically independent of the conclusions of Senate or people; out of the city, commissioned as proconsuls or pro- prætors, they were actually independent. Theywere city officers far away from home and from all city oversight, among subjects instead of among fellow- citizens. In Romejustice was administered by the magistrate, always subject toappeal in all cases which were not in the first instance heard injury-courts, and well-known law governed all decisions. But inhis province the pro-magistrate was a final judge restrained by nolaw but his own edict, issued on entering upon his provincialcommand, 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 collectingtaxes in the province by means of any stretched municipalinstrumentality, the taxes were farmed out to publicans. Therebeing no way known to Roman municipal method of bringinglocal government in the provinces into any sort of systematiccooperation with the general administration, towns and districtswere usually suffered to retain their own local organization, butsubject to the constant harassment of Roman interference.Force cured the want of system; arrogant domination servedinstead of adequate machinery; a genius for intrigue and foropen subjugation took the place of wise legislation. The worldwas made use of rather than administered.203. Causes of Failure. This attempt to make a city consti-THE GOVERNMENT OF ROME. 117tution serve for the government of a whole empire failed,therefore, for the double reason that it was impossible toprovide masters for the magistrates who had gone out nominallyas servants of the city without giving the provincials a share inthe government, and impossible to give the provincials part in asystem which knew nothing of representative assemblies, andconsequently nothing of citizenship save in the shape ofprivileges which could be exercised only in Rome itself. Theprovinces could not be invited to Rome to vote and sit in theassemblies and the jury-courts. And it was not citizenship inRome that the provincials wanted, but Roman citizenship in theprovinces, if such a thing could be invented, with power to curbmagistrates and condemn publicans on the spot.204. Constitutional Tendencies. Within Rome herself, theadmission of the plebeians to the magistracies, and the grantingof practically conclusive legislative authority to the resolutions ofthe popular assemblies, had virtually completed the history offormal constitutional change. Henceforth, the changes whichtook place were not changes of form, but went on, rapidlyenough, though almost unobserved, at the heart of the constitutional structure. It was the growth of the empire which washereafter to work transformations in affairs. The Senate hadcharge of foreign affairs, and the people took little heed of theprovinces, except when colonies were to be planted and poormen might get provided for. The spoils of conquest anddominion lifted the burden of taxation from the shoulders ofthe burgesses at home, and made them indifferent how the Senatemanaged the finances. The army grew to be a professional body,no longer a levy of farmers, and the absence of stern effort inthe field added its own element to easy-going indifference athome. The city was full of those who had grown rich throughthe city's conquests and trade, and of those who had grown idleand lived upon the public bounty.205. As she waxed strong, the city unwisely grew less andless liberal towards her Italian subjects, and more and morejealous to restrict political privilege to her own immediatecitizens. Nominally there were four assemblies: the Comitiacenturiata, the Comitia curiata, the Comitia tributa, and the con-118 THE GOVERNMENT OF ROME.cilium plebis. In effect there were but two: the Comitia centuriata,which had come to be hardly more than an elaborate piece ofelectoral machinery, and the Comitia tributa, of which the concilium plebis was, in fact, a mere subdivision, hardly to be distinguished from the whole assembly of the tribes, now that theorders were at last combined. The Comitia curiata had now littlemore than a formal existence and function. The Comitia centuriatawas presently somewhat radically reformed and popularized. Itwas no longer the army in assembly (secs. 162, 163, 165 ) , for thearmy had long since ceased to be in fact a levy of the centuries,and it was no longer feasible to base a popular electoral organization upon it. The somewhat regular gradations of wealth whichhad once characterized the city, had disappeared along with thedecay of the substantial middle, farmer class, which had oncebeen the backbone of the community, and it was no longer justor convenient that the few who were rich should have as manyvotes as the many who were without riches. A reform wasaccordingly effected by combining the division by propertyclasses with the division into tribal districts upon which theComitia tributa was based. A division into five property classeswas arranged within each tribe, and within each class the olddivision into seniores and juniores; the right to vote first in theassembly was taken away from the noble and exclusive equites,who still nominally supplied the horsem*n of the census, andbestowed upon each occasion by lot; the basis upon which theproperty classification was reckoned, was made to include freecapital and cash as well as land; and the old prerogatives of merewealth and rank were largely levelled away.206. Notwithstanding their nominal authority in all electoraland legislative matters, the assemblies were really falling off inpower and influence. The Comitia tributa by no means retainedthe significance it had had while the two orders still struggled forascendency in the state, and the concilium plebis no longer servedas an advantageous forum for constitutional agitation. The tribunate lost by degrees its first character and old-time importance,until the tribunes had come to be, not officers of the people, butofficers of the general administration merely, taken, as all otherofficers were, from amongst the ruling persons in the state, theTHE GOVERNMENT OF ROME 119men for whom ability, or influence, or wealth opened a way intothe Senate, amongst whom no distinction between patrician andplebeian was any longer to be traced, but who were none the lessto be distinguished as a sort of official order, their families parexcellence the " senatorial families " of the city. The young menof this class went through a regular course of promotion fromoffice to office until the consulship was attained. The law presently fixed the cursus honorum, an established order and age ofpromotion (Lex Villia Annalis, B.C. 180); and the tribuneship wasopen with the rest. There was no such individual initiative inthe Roman assemblies as was permitted in the assembly atAthens. Only magistrates could propose legislation. The tribunes of these later days proposed, most often, no doubt, what theSenate wished, or the official class. There were ten tribunes, andsome one of them could be found upon occasion who would exercise his old power of the veto upon the action of another magistrate whom the Senate wished to check. The whole machineryof initiative and of control had passed into the hands of the Senate. It was supreme so long as, with moderate prudence, it keptan eye upon opinion; and opinion grew fitful at last and lost itsweight as the population of Rome lost character and steadiness of habit.207. The Oligarchy. Such changes in the whole spirit, structure, and condition of politics produced at length what was nothing less than an oligarchy, whose distinction was not patricianblood, but wealth, social position, and a monopoly of the officeswhich led to the Senate. There were in the ascendency of thisoligarchy, moreover, all the subtle elements of demoralization.The offices upon which its power rested were one and all electoraloffices: the favor of the people had to be won in order to obtainthem, the arts of the demagogue assiduously practised, or elsetrickery and the corrupting power of wealth had to be resorted to.The curule dileship lay, with the rest, in the cursus honorum, —the office whose charge it was to exercise jurisdiction and oversight in the markets, maintain the public works of the city, andkeep its ways clean, superintend the public baths, and see to theproper sanitation of the capital, and conduct the public games;and it was necessary to spend money, and favors, and services120 THE GOVERNMENT OF ROME.very freely in this office in order to obtain the prætorship whichlay beyond it. And yet the candidate's object was not that of thedemocratic but that of the aristocratic demagogue, who meant touse his power in all its higher kinds, in the prætorship and theconsulship, to advance the interests of his own wealthy and selfseeking order. It was a system which surely, though slowly,bred that worst of aristocracies, a hypocritical oligarchy.208. Decay of the Republic. It was the selfish and arrogant,and in the end incapable, rule of this oligarchy that brought aboutthe decay and permitted the collapse of the Republic, and madethe establishment of the Empire inevitable. For the peoples, theinterests, the dominions, the magistracies which these men soughtto direct and govern were become, ere long, too varied, too complex, too disordered, too vast both for the constitutional machinery and for the political intelligence with which they sought tocontrol them. It was necessary henceforth, if government wasto be effectual, to draw together again and combine the powers ofa now discordant magistracy: " (1) to restore the basis of themilitary and political system by revising agriculture and replacing the yeomanry on the land; (2 ) to provide for the relief of thepoor and the police of the capital; (3) to enfranchise the Italiansand develop local government; (4) to consolidate the provincesby upright rule and gradual Romanisation; (5) to reorganize thearmy and navy on a professional basis, with adequate checks onthe action of the officers; and (6) lastly, to establish a defensiblefrontier, a systematic budget, and easy communication within theempire . " 1 The magistrates of the city were the mere agents ofa council in which personal and party interests had full play; themagistrates of the provinces had no common master whom therewas any need to fear; the armies of the Republic had only a debating society to look to for control and plan of discipline; Italians found themselves hardly less provincials and subjects thanthe men of the provinces, whose spoils and slaves poured yearlyinto the city, to the demoralization of the markets and the degradation and impoverishment of the small Roman farmer. TheSenate had lost its old grasp upon affairs, and had neither theinclination nor the ability to apply the only possible remedy: anHow and Leigh, p. 325.THE GOVERNMENT OF ROME. 121administrative centralization and reform which would have robbedit of its own ascendency.209. An Emperor the Remedy.-It turned out, in the slow process of revolution which the rule of the oligarchy brought uponthe city, that the only means of accomplishing the administrativechanges which yearly became more and more necessary was toconcentrate power in the hands of one man, at first under theforms of the old constitution, at length in open disregard of thoseforms, and this was the establishment of the Empire. By making all men subjects, it practically made all men citizens . Itbrought Rome, indeed, very soon to the level of the provinces;but it also brought the provinces to the level of Rome by givingher and them a common master who could unify administrationand oversee it with an equal interest in the prosperity of all partsof a consolidated domain. That is what Cæsar attempted, andwhat the overthrow of the Republic and the establishment of theEmpire accomplished . Under the consuls and the Senate, theprovinces had been administered as Rome's property, as the estateof the Roman people; under the emperors, who combined in theirsingle persons consular and pro-consular, prætorian and pro-prætorian, tribunician and quæstorian powers, the provinces very sooncame to be administered as integral parts of Rome. The Senatestill stood, and many provincial officers were still formally electedby the people of the city; but the city became, scarcely less thanthe provinces, bound to perfect obedience to the emperor; provincial officers, and even city officers, were recognized as only hisdeputies; the Empire was unified and provincials brought toan equality with their former masters by a servitude commonto all. Caracalla's act of universal enfranchisem*nt, whateverits immediate purpose ( A.D. 212) , was a logical outcome of theimperial system. All were citizens where all were subjects.210. Genesis of the Empire. It is not possible to understandeither the processes or the significance of the establishment of theEmpire, without first understanding also the discipline of disorder.and revolution by which Rome was prepared for the change fromrepublican to imperial forms of government. The Empire wasnot suddenly erected . The slow and stubborn habit of the Roman,degenerate though he had become by reason of the dissipations of122 THE GOVERNMENT OF ROME.conquest and the growth of a professional military spirit, wouldnot have brooked any sudden change. That habit yielded only toinfluences of almost one hundred and fifty years standing. Thechanges which transmuted the Republic into the Empire beganwith the agrarian legislation of Tiberius Gracchus, B.C. 133, andcan hardly be said to have been completed at the death of Augustus, A.D. 14.211. Tiberius Gracchus to Augustus.-The first stages of thechange which was to produce the Empire had, indeed, precededthe time of the Gracchan legislation . The strength of the Republic had lain in the body of free, well-to-do citizens, in a race offree peasants as well as of patriotic patricians, in a yeomanry ofsmall farmers rather than in a nobility of great landholders.But the growth of the Roman dominion had radically altered allthe conditions of Rome's economic life. She had not only spentthe lives of her yeomen in foreign wars, but had also allowedthem to be displaced at home by the accumulation of vast estatesin the hands of the rich, and by the introduction of slave labor.The small farm was swallowed up in the great estates about it;the free laborer disappeared in the presence of the cheap slavespoured in upon Italy as the human spoils of foreign conquest.Presently the cheap and abundant grain of the provinces, too,rendered agriculture unprofitable in Italy, and even farming on avast scale by means of slave labor ceased. The great estates wereconverted into pastures for the rearing of flocks and herds. Thepressure of these changes upon the peasant classes was somewhatrelieved from time to time, indeed, by the establishment of colonies in various parts of Italy upon lands acquired by conquest;but such relief was only partial and temporary. When Carthagewas finally overthrown and the greater strains of war removedfrom Rome, the economic ruin of the home state became painfullyevident, the necessity for reform painfully pressing. The poorwho were also free had no means of subsistence: all the landsonce owned by the state were in the hands of the rich, and withthe 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 crumbledutterly away.THE GOVERNMENT OF ROME. 123212. It was this state of affairs that Tiberius Gracchus essayedto remedy, by reviving the Licinian laws of B.C. 367 (sec. 192) ,in violation of which the rich senatorial families had absorbedthe public lands. By enactments which he proposed as Tribunein 133 B.C. , the public lands illegally occupied were reclaimed fordistribution by a retroactive enforcement of the old limitations asto the amount of public land which each person should be allowedto hold, and, although the senatorial party accomplished themurder of Tiberius and the temporary defeat of his party, hismeasures were in large part put into operation, in deference tothe clamors and demands of the people. Ten years later, Tibeyounger brother, Gajus Gracchus, received the tribuneshipand vigorously renewed the same policy. He forced to enactmentlaws providing for the sale of grain at low prices to the people,for the establishment of colonies outside of Italy in the provinces,for the admission of certain classes of the citizens outside theSenate to a participation in the judicial functions then beingmonopolized by the senatorial oligarchs, and for a new method ofbestowing provincial commands. But once more the oligarchycrushed its enemies and regained its de facto ascendency in thestate. Slaves, besides displacing the free yeomen on the farmlands, crowded them in the city, where they were given domesticservice not only, but filled also all the smaller sorts of trades andhandicrafts, instructed their masters' children, acted as theirmasters' secretaries and confidants, and executed even the meanersorts of public office. Freedmen were enrolled in the census andmade their way into the assemblies, to swell the number of thosewho were ready to do the work of the oligarchs; and the streetsof the city filled with restless mobs.213. It was the rule of the oligarchy which produced Mariusand Sulla and the cruel civil wars between the respective partiesof these rival leaders. Both parties alike threw, now and again,a sop to the commons, but neither seriously undertook any reform of the evils which were sapping the state of every element ofrepublicanism . The Italian allies went into revolt, and forcedtheir way into the privileges of the franchise; but intrigueeffected their real defeat in the struggle for substantial power,and their success did not touch the economic condition of Italy.124 THE GOVERNMENT OF ROME.Sulla was able to carry reactionary legislation which turned theconstitution back in some respects as far as the times of Serviusand established control of the oligarchy upon a basis of definitelaw. The extreme policy of the oligarchs produced reaction;but reaction did not strengthen the people; it only developedfactions. The time of healthful reaction had passed, and theperiod of destroying civil war had come. Civil war opened thedoors to Cæsar and the several triumvirates, and finally Romesaw her first emperor in Octavian. The stages of the transformation are perfectly plain: there had been ( 1 ) the decay of thefree peasantry and the transfer of the economic power from themany to the few; ( 2 ) the consolidation of oligarchic power inthe Senate; ( 3 ) reactions and factional wars; ( 4 ) the interference of Cæsar, fresh from great successes in Gaul and backedby a devoted army; ( 5 ) the formal investiture of a single manwith controlling authority in the state. Disorder and civil warhad become chronic in the degenerate state, and had been curedin the only feasible way.Th.-Of214. Transmutation of Republican into Imperial Institutionsunder Augustus. But even in the final stage of the great changeall appearance of radical alteration in time-honored institutionswas studiously and circ*mspectly avoided. The imperial officewas not created out of hand, but was slowly pieced together outof republican materials; and the process of its creation was presided over by Octavian, the best possible man for the function,at once a consummate actor and a consummate statesman.course there was and could be no concealment of the fact thatpredominance in the state had been given to one man; but thetraditions of the Republic furnished abundant sanction for thetemporary investiture of one man with supreme authority:the dictatorship had been a quite normal office in the days of theRepublic's best vigor. What it was possible and prudent to conceal was, that one man had become permanent master and thatrepublican institutions had been finally overthrown. Even thetime-honored forms of the dictatorship, therefore, were avoided:the dictatorship was an office raised above the laws and renderedconspicuous in its supremacy, and had, moreover, been renderedhateful by Sulla. All that was desired was accomplished byTHE GOVERNMENT OF ROME. 125the use of regular republican forms. The framework of theold constitution was left standing; but new forces were made towork within it.215. In the year B.C. 43 Octavian had formed with Antoniusand Lepidus the second triumvirate and had received along withthese colleagues, by decree of the people, supreme authority in thatcapacity for a period of five years; at the end of those five years(B.C. 38) the powers of the triumvirate were renewed for anotherterm of the same length. This second period of the triumviratewitnessed the steady advance of Octavian in power and influence atthe expense of his colleagues. His own powers survived the expiration of the five years (B.c. 33) . In B.c. 31 , exercising the military imperium conferred upon him in 32, he met and defeatedAntonius at Actium, pretending to meet him, not as if he were arival, but as if he were a leader of the revolted East; and after Actium he was supreme.But he still made no open show of anypower outside the laws. The years 28 and 29 B.C. saw himconsul, with his close friend Agrippa as colleague. By virtue ofthe censorial powers originally belonging to the consular office,specially conferred upon him, he effected a thoroughreformation of the Senate, raising the property qualificationsof its members, introducing into it fresh material from theprovinces, purging it of unworthy members, and otherwise preparing it as an instrument for the accomplishment of his furtherpurposes. In B.c. 28 he formally resigned the irregular powerswhich he had retained since 33 by virtue of his membership ofthe triumvirate, declaring the steps which he had meantimetaken as triumvir illegal, and pretended to be about to retire fromthe active direction of affairs. Then it was that the process began which was to put the substance of an empire into the formsof the Republic.andnow216. In the year B.C. 27 he suffered himself to be persuaded bythe senators to retain the military command for the sake of maintaining order and authority in the less settled provinces, and overthese provinces he assumed a very absolute control, appointingfor the administration of their affairs permanent governors whoacted as his lieutenants, and himself keeping immediate commandof the forces quartered in them . The other provinces, however,126 THE GOVERNMENT OF ROME.6remained senatorial,' their affairs directed by the Senate's decrees, their pro-consuls or pro-prætors appointed by the Senate, asof old. Avoiding the older titles, which might excite jealousy,Octavian consented to be called by the new title, sufficientlyvague in its suggestions, of Augustus.' Presently, in 23 B.C. andthe years immediately following, he was successively investedwith tribunician, with pro-consular, and with consular powers,accepting them for life. In 19 B.C. he was formally entrustedwith supervision of the laws, and in 12 B.c. he became PontifexMaximus. His powers were at length complete. But his assumption of these powers did not mean that the old republican officeshad been set aside. He was not consul, he simply had consularpowers; he was not tribune, but only the possessor of tribunicianpowers. Consuls, tribunes, and all other officers continued to beelected by the usual assemblies as before, though, in the case ofthe consuls, with shortened terms. The emperor was in formonly associated with them. Above all, the Senate still stood, thecentre of administration, the nominal source of law, ' Augustus 'sitting and voting in it like any other senator, distinguished fromthe rest neither in position nor in dress, demeaning himself likea man among his equals. In reality, however, he was of coursedictator of every step of importance, the recognized censor uponwhose will the composition of the Senate depended, the patron towhose favor senators looked for the employment which gave themhonor or secured them fortune: Long life brought Augustus intothe possession of an undisputed supremacy of power, in the exercise of which he was hampered not at all by the republican formsunder which he forced himself to act. He even found it safe atlength to surround himself with a private cabinet of advisers towhom was entrusted the first and real determination of all measures whether of administration or of legislation . The transmutation of republican into imperial institutions had been successfullyeffected; subsequent emperors could be open and even wanton intheir exercise of authority.217. No nation not radically deficient in a sense of humor, it wouldseem, could have looked upon this masquerade with perfect gravity, as theRomans did. One constantly expects in reading of it to learn of its having been suddenly broken up amidst a rude burst of laughter.THE GOVERNMENT OF ROME. 127•Of course the order secured by the new régime must have been verywelcome after so long a period of civil strife and anarchy; and the men ofcourage and initiative who would have organized resistance or spokenopen exposure of the designs of Augustus had perished in the wars andproscriptions of previous revolutions . The state wanted rest and order asFrance did in the days of Louis Napoleon, and lacked leaders who wouldhave resisted the purchase of order or rest at too great a cost to liberty .Octavian had at least given a centre to the once headless system , “ a chiefto the civil service, a head to the army, a sovereign to the subjects, a protector to the provinces, and peace to the world. " Octavian had, moreover, since Actium, been at the head of about two score veteran legions,"conscious of their strength, and of the weakness of the constitution ,habituated, during twenty years of civil war, to every act of blood andviolence , and passionately devoted to the house of Cæsar." It mighthave been dangerous to laugh at the farce.-218. The Completed Imperial Power. The Emperor, thuscreated as it were a multiple magistrate and supreme leader inall affairs of state, though nominally clothed with many distinctpowers, in reality occupied an office of perfect unity of character.He was the state personified. No function either of legislativeinitiative or of magisterial supervision and direction was foreignto his prerogatives; he never spoke but with authority; he neverwished but with power to execute. The magistrates put into theold offices by popular choice were completely dwarfed in theirroutine of piecemeal functions by the high-statured perfection ofpower, rounded at all points and entire. Such minor powersas were needed to complete the symmetry of his office werereadily granted by the pliant Senate. A citizen in dress and lifeand bearing, he was in reality a monarch such as the world hadnot seen before.his219. The New Law-making. The only open breach with oldrepublican method was effected in the matter of legislation .Even the forms of popular legislation ceased to be observed; thepopular assemblies were left no function but that of election; theSenate became, in form at least, the single and supreme law-making authority of the state. The Senate was, indeed, the creatureof the Emperor, senators being made or unmade at his pleasure;but it had an ancient dignity behind which the power of the¹ Gibbon, Chap. III. ( Vol. 1. , p. 36 , of Harper's edition , 1840) .128 THE GOVERNMENT OF ROME.sovereign took convenient shelter against suspicion of open revolution. Its supreme decrees, as Gibbon says, were at once dictated and obeyed. " Henceforth the emperor is virtually the solesource of law, for all the authorities quoted in the courts areembodiments of his will. As magistrate he issues edicts in accordance with the old usage in connection with the higher officeswhich he held, as did the prætors of the earlier days. When sitting judicially he gave decrees; he sent mandates to his ownofficials, and rescripts were consulted by them. He named theauthorized jurists whose responses had weight in the nice pointsof law. Above all he guided the decisions of the Senate whoseSenatus consulta took the place of the forms of the republicanlegislation. " 1220. The elective prerogatives of the popular assemblies survived onlythe first imperial reign. During the reign of Tiberius the right to electofficers followed the legislative power, passing from the assemblies to theSenate. Singularly enough the diminished offices still open to electionwere much sought after as honors. Though filled for the most part withcandidates named by the Emperor, they solaced the civic ambitions ofmany a patrician.221. Judicial Powers of the Senate. What principally contributed to maintain the dignity and importance of the Senate inthe early days of the Empire was its function as a court of justice. In the performance of this function it was still vouchsafedmuch independence. Some belated traditions of that ancienteloquence which the Senate of the Republic had known anddelighted in, but which could live only in the atmosphere of realliberty, still made themselves felt in the debate of the greatcases pleaded in the patrician chamber.222. Growth of New Offices. - As the imperial office grew andthe constitution accommodated itself to that growth, a new officialorganization sprang up round about it. Præfects (præfecti ) therehad been in the earlier days, deputies commissioned to performsome special magisterial function; but now there came intoexistence a permanent office of Præfect of the City, and theincumbent of the office was nothing less than the Emperor's1 The Early Empire ( Epochs of Ancient History series) , by W. W.Capes, p. 181.THE GOVERNMENT OF ROME. 129vice-regent in his absence. Prætorian cohorts were organized,under their own Præfect, as the Emperor's special body-guard.The city, too, was given a standing force of imperial police.Procurators (proctors), official stewards of the Emperor's privypurse both at home and in the provinces, though at first wellregulated subordinates, came presently into very sinister prominence. And the privy council of the monarch more and moreabsorbed directive authority, preparing the decrees which were togo forth in the name of the Senate. mon .223. The Provinces.-But it was the provinces that gave tothe Empire a life and a new organization all its own . If theRepublic had proved a failure in Rome because of economicdecay, and the too great strains of empire, how much greaterhad its failure been for the provinces! No one had so muchreason 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 whohad ruled the provinces in the name of the Republic had misgoverned, fleeced, ruined them at pleasure, and almost withoutresponsibility; for the city democracy was a multitudinousmonarch with no aptitude for vigilance. But with a single andpermanent master at the seat of government the situation wasvery different. His financial interests were identified withthe prosperity of the provinces not only, but also with thepecuniary honesty and administrative fidelity of the imperialofficers throughout the Empire; with him it was success to keephis subordinates in discipline, failure to lose his grip upon them.That province might account itself fortunate, therefore, whichpassed from senatorial control and became an imperial province,directly under the sovereign's eye ( sec. 216 ); but even in thesenatorial provinces the Emperor's will worked for order, subordination, discipline; for regular, rigid control.224. Under the emperors, moreover, the Senate gained a newinterest 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, gained admissionto the Senate . There were at last champions of the provinceswithin the government, as well as imperial officials everywhere130 THE GOVERNMENT OF ROME.acting as the eye of the Emperor to search out maladministration,and as his mouthpieces to speak his guiding will in all things.--- 225. The Empire overshadows Rome. In another and evenmore notable respect, also, the provinces were a decisive makeweight in the scale of government after the establishment of theEmpire. The first five emperors (Augustus to Nero) figured asof the Julian line, the line of Cæsar, and under them the Empirewas first of all Roman, was Rome's; but for their successors,Rome, though the capital, was no longer the embodiment of theEmpire. 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 andits people were more and more widely and liberally extended tothe towns and inhabitants of the provinces. Gradually the provinces loomed up for what they were, by far the greatest and mostimportant part of the Empire, and the emperors began habitually to see their dominion as a whole. Under the successors ofthe 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 longsettled in Spain; so, too, did Marcus Aurelius . Under suchmen the just balance of the Empire was established; the spellwas broken; the emperors ruled from Rome, but not for Rome:the Empire had dwarfed the city.226. Nationality of the Later Emperors. The later emperors, introduced during the régime of military revolution, were some of them noteven of Roman blood. Elagabalus is said to have been a sun priest fromSyria; Maximin was a Thracian peasant; Diocletian, with whom theperiod of military revolution may be said to have closed, and who was thereorganizer of the Empire, was born of a humble Dalmatian family. Henceforth Latin blood was to tell for little or nothing. The centre of gravityhad shifted away from Rome. After the second century even the Latinlanguage fell into decay, and Greek became the language of universal acceptance and of elegant use.A227. The Army. The elevation of the provinces to theirproper status within the Empire meant, however, most unhappily, the elevation of the provincial armies to political prominence . Very early in the history of Rome's conquests her armiesTHE GOVERNMENT OF ROME. 131had come to be made up largely of provincial levies, and as theEmpire grew the armies by which it was at once extended andheld together became less and less Roman in blood, though theyremained always Roman in discipline, and long remained Romanin spirit. Gauls, Germans, Scythians, men from almost everybarbarian people with which Rome had come in contact, pressedor were forced into the Roman service. By the time the lastdays of the Republic had come, the government trembled in thepresence of the vast armies which it had created. Augustus studiously cultivated the indispensable good- will of his legions . Itwas the prætorian guard that chose Claudius to be Emperor.Very early the principle was accepted that the Emperor waselected " by the authority of the Senate, and the consent of thesoldiers. " Galba, Otho, and Vitellius were the creatures of themilitary mob in Rome. Even the great Flavian emperors cameto the throne upon the nomination and support of their legions.And then, when the best days of the Empire were past, therecame that dreary period of a hundred years, and more than ascore of emperors, which was made so hideous by the ceaselesscontests of the provincial armies, as to which should be permittedto put its favorite into the seat of the Cæsars .―-228. Changes in the System of Government. It was in partthe violence of this disease of the body politic that suggestedto the stronger emperors those changes of government whichmade the Empire of Constantine so different from the Empireof Augustus, and which exhibited the operation of forces whichwere to bring the government very near to modern patterns ofabsolute monarchical rule. Even before military revolutions hadcompelled radical alterations of structure in the government, theslow developments of the earlier periods of the Empire had createda civil service quite unlike that which had served the purposes ofthe Republic. Noble Romans had time out of mind been assistedin the administration of their extensive private estates and theirlarge domestic establishments by a numerous staff of educatedslaves; and it was such a domestic and private machinery whichthe first emperors employed to assist themin public affairs. Onedomestic served as treasurer, another as secretary, a third asclerk of petitions, a fourth as chamberlain. It required many a132 THE GOVERNMENT OF ROME.decade of slow change to reveal to the eye of the free Romanthat any honor lay in this close personal service of a sovereignmaster. The free Roman of the days of the Republic had servedthe state with alacrity and pride, but would have esteemed theservice of any individual degrading: domestic association withand dependence upon a leader, even upon a military leader, hadnever seemed to him what it seemed to the free Teuton (secs.291-293) , a thing compatible with honor; much less could itseem to him a source of distinction. But the ministerial officesclustering about the throne and by degrees associated with greatinfluence and power at last came to attract all ambitions. Fromthe first, too, patricians had stood close about the person of theEmperor as his privy councillors. These councillors became thecentral figures of the monarch's court: they were his ' companions ' (his comites, the word from which we get the modern titlecount) . The later day when all service of the Emperor had becomehonorable to free men saw the name of comites transferred to thechief permanent functionaries of the imperial service.229. The domestic ministerial service of the early Empire was the samein germ as that organization of stewards, chamberlains, butlers, and therest to be found in the courts of medieval Europe, out of which ourmodern ministries and cabinets have been evolved. It was to comevery near to its modern development, as we shall see, under Constantine(sec. 237) .230. As the imperial system grew, offices multiplied in theprovinces also. Provincial governors had at first little morethan 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 theirown governments, and local customs were suffered to retain theirpotency. But steadily the direct imperial system grew by interference, sometimes volunteered, sometimes invited. The usualitching activity took possession of the all- powerful bureaucracywhich centralized government created and fostered. Provincialgovernors were before very long surrounded by a numerous staffof ministers; a great judicial system sprang up about them, presided over often by distinguished jurists: Roman law penetrated,with Roman jurisdiction and interference, into almost everyTHE GOVERNMENT OF ROME. 133affair both of public and of private concern .Centralizationwas not long in breeding its necessary, its legitimate, hierarchy.The final fruit of the development was a civil service, an officialcaste, constituted and directed from the capital and regulated bya semi-military discipline.-231. Constitutional Measures of Diocletian. The period ofrevolution and transition, the period which witnessed the mutinous ascendency of the half- barbaric soldiery of the provinces,lasted from the year 180 to the year 284. In the latter year Diocletian ascended the throne, and presently demonstrated in thechanges which he introduced the constitutional alterations madenecessary by that hundred years of fiery trial. All the oldfoundations of the constitution had disappeared. There was nolonger any distinction between Romans and barbarians withinthe Empire: the Empire, indeed, was more barbarian thanRoman; the mixed provincial armies had broken down all walls.of partition between nationalities. With the accession of Diocletian the Empire emerges in its new character of a pure military despotism . The Senate and all the old republican officeshave disappeared, except as shows and shadows, contributing tothe pageantry, but not to the machinery, of the government.The government assumes a new vigor, but dispenses with everyold-time sanction. The imperial rule, freed from old forms, hasbecome a matter of discipline and organization merely.232. The measures of Diocletian were experimental, but theyfurnished a foundation for what came afterwards from the handof Constantine. Diocletian sought to secure order and imperialauthority by dividing the command of the Empire under chiefspractically independent of each other and of him, though actingnominally under his headship. He associated Maximian withhimself as co- regent, co- Augustus, with a separate court atMediolanum (Milan) , thence to rule Italy and Africa. His owncourt he set up at Nicomedia in Bithynia, and he retained forhimself the government of the East, as well as a general overlordship as chief or senior ' Augustus. ' The frontier provincesof Gaul, Britain, and Spain he entrusted to the government of a' Cæsar, ' for whom Augusta Trevirorum (Trier) in Gaul servedas a capital; the control and defence of Illyricum to another134 THE GOVERNMENT OF ROME.'Cæsar, ' who held court at Sirmium. The two ' Cæsars ' servedas assistants, and posed as presumptive successors, of the two' Augusti, ' ruling the more difficult provinces, as younger andmore active instruments of government. Each Augustus andeach Cæsar exercised supreme military and civil authority in hisown division of the Empire, though each formally acknowledgedDiocletian head over all .This system marks the abandonment of Rome as a capital and therecognition of a certain natural division between the eastern and thewestern halves of the Empire.233. Reforms of Constantine. This division of authoritybrought about, after the retirement of Diocletian, a strugglefor supremacy between many rivals; but that struggle issued,fortunately, in the undisputed ascendency of Constantine, a manable to reorganize the Empire. The first purpose of Constantine was to recast the system altogether. He meant to divideadministrative authority upon a very different plan, whichshould give him, not rivals, but servants . His first care was toseparate civil from military command, and by thus splittingpower control it. There was henceforth to be no all-inclusivejurisdiction save his own. For the purposes of civil administration he kept the fourfold division of the territory of the Empiresuggested by the arrangements of Diocletian, placing over each' prefecture ' (for such was the name given to each of the fourdivisions) a Prætorian Præfect empowered to act as supremejudge, as well as supreme financial and administrative agent ofthe Emperor, in his special domain, as the superintendent ofprovincial governors, and as final adjudicator of all mattersof dispute: as full vice-regent, in short, in civil affairs .234. Under the arrangements of Diocletian each Augustus and eachCæsar had had a prætorian præfect associated with him as his lieutenant,as successors under much altered circ*mstances to the title of the oldtime prætorian præfect of Rome. Under Constantine there were the fourpræfects, but no Augusti or Cæsars placed over them, no master but Constantine himself, and possessing functions utterly dissimilar from those ofthe older prætorian præfect in that they were not at all military, butaltogether civil.The prætorian guards were finally abolished under Constantine. Forthem the play was over.THE GOVERNMENT OF ROME. 135235. The four prefectures Constantine divided into thirteen' dioceses ' over which were placed vicars or vice- præfects; andthese dioceses were in their turn divided into one hundred andsixteen provinces governed, a few by pro-consuls, a somewhatlarger number by ' correctors, ' many by ' consulars, ' but most by' presidents. '"All the civil magistrates, " says Gibbon, " were drawn from the profession of the law. " Every candidate for place had first to receive fiveyears' training in the law. After that he was ready for the official climb:employment in successive ranks of the service might bring him at last tothe government of a diocese or even a prefecture.236. Such was the civil hierarchy. Military command wasvested in four Masters- General superintending thirty-five subordinate commanders in the provinces.These subordinate commanders bore various titles; they were all without distinction dukes (duces, leaders); but some of them had attainedto the superior dignity of counts (comites) .-237. The Household Offices. Constantine emphasized thebreak with the old order of things by permanently establishinghis capital at Byzantium, which thereupon received the name ofConstantinople, a name whose Greek form still further points thesignificance of the shifting of the centre of the Empire. Romeherself had, so to say, become a province, and the administrationwas in the Greek East. The court at Constantinople, moreover,took on the oriental magnificence, treated itself with all the seriousness in points of ceremony, with all the pomp and consideration that marked the daily life of an Eastern despotism. Thehousehold offices , created in germ in the early days of the Empire(sec. 228) , had now expanded into a great hierarchy, centering inseven notable offices of state, and counting its scores and hundredsof officials of the minor sort. There was (1) the Great Chamberlain; (2) the Master of Offices, whom later days would probablyhave 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 Quaestor; (4) a Treasurer- General, superintendent of some twentynine receivers of revenue in the provinces, overseer also of136 THE GOVERNMENT OF ROME.foreign trade and certain manufactures; (5) a treasurer calledCount ofthe Privy Revenue of the monarch; (6 and 7) two Countsof the Domestics, new prætorian præfects, commanding, the onethe cavalry, the other the infantry, of the domestic troops, officers who in later times would probably have been known asconstable and master of the horse.238. We have thus almost complete in the system of government perfected by Constantine that machinery of household officers, military counts,and provincial lieutenants which was to serve as a model throughout theMiddle Ages wherever empire should arise and need organization . The' companions ' (comites) of the Teutonic leaders held a much more honorable position than did the domestic servants of the Roman Emperor, andtheir dignity they transmitted to the household officers of the Teutonickingdoms; but the organization effected by Constantine anticipated thatsystem of government which has given us our provincial governors and our administrative cabinets.239. The Eastern and Western Empires; Greek and Teuton.The conquests within the Empire effected by the Teutonic peoplesin the fifth century and the centuries immediately following cutaway the West from the dominions of the Emperor at Constantinople. The division between the East and West, which Diocletian had recognized in his administrative arrangements, atlength became a permanent division, not merely an administrative, but a radical political separation, and the world for a whilesaw two empires instead of one: a Byzantine or Greek empirewith its capital at Constantinople, and a Western empire withits capital at Rome or Ravenna. When Italy fell again nominally to the Eastern Empire, in 476, she did not carry the restof Western Europe with her. The West had fallen apart underthe hands of the Germans, and was not to know even nominalunity again until the Holy Roman Empire should arise underCharles the Great (sec. 482) . Meantime, however, the EasternEmpire retained in large part its integrity and vigor, as well asits administrative organization also. It was not to be totallyoverthrown until 1453.240. Religious Separation and Antagonism. - The political separation thus brought about between the Eastern Empire and the peoples ofthe West was emphasized and embittered by religious differences . Chris-THE GOVERNMENT OF ROME. 137tianity had been adopted by Constantine, and had practically continuedto be the religion of the Eastern Empire without interruption; but theChristian doctrine of the East was not the same as the Christian doctrineof the West; the ecclesiastical party centering in the episcopate at Romeviolently antagonized the doctrines received at Constantinople. The worldtherefore saw two churches arise, with two magnates, the Pope at Romeand the Patriarch at Constantinople, the one virtually supreme because inthe West, where he was overshadowed by no imperial throne, the otherdominated by a throne and therefore partially subordinate . This religiousdifference, accompanying as it did differences of language and traditionalso, the more effectually prevented political unity and even politicalintercourse between the East and the West, and thus assisted in settingwestern Europe apart to a political development of her own.GENERAL SUMMARY OF ANCIENT POLITICS .241. The City the Centre of Ancient Politics. We are now ina position to understand how the full-grown Greek and Romangovernments, which are so perfectly intelligible to our modernunderstandings, were developed from those ancient family statesin which we saw government begin, and of which both Greekand Roman institutions bore such clear traces, but which it is sodifficult for us now to imagine as realities . It is plain, in thefirst place, how that municipal spirit was generated which wasso indestructible a force in ancient politics. The ancient citywas not merely a centre of population and industry, like thecities of the present day. If merchants and manufacturers filledits markets, that was merely an incident of the living of manypeople in close proximity; and the existence of the city wasquite independent of the facilities it offered for the establishment of a mart. Life about a common local centre in compactsocial organization was a necessity to a patriarchal confederacyof families, phratries, and tribes. And until Roman empire hadtrodden out local independence, compacted provinces, and sofused the materials and marked the boundaries for nationalities;until those nationalities had been purged by the feudal system,kneaded into coherent masses by the great absolute monarchiesof the Middle and Modern Ages, vivified by Renaissance andReformation, and finally taught the national methods of the modern popular representative state, the city, the municipality, —138 THE GOVERNMENT OF ROME.―the compact, coöperative, free population of a small locality,continued to breathe the only political life of which the worldcould boast. Politics, the affairs of the róλis (polis), the city,-divorced from municipal government was a word of deathuntil nations learned that combination of individual participationin local affairs and representative participation in national affairswhich we now call self- government. The free cities of theMiddle Ages are the links through which have been transmittedto us the liberties of Greece and Rome.242. The Approaches to Modern Politics: Creation of the Patriarchal Presidency. - Rome's city government, as we have seen,fell under the too tremendous weight of empire: the Greek citieswent down under the destructive stress of unintermitted waramong themselves and irresistible onset from Macedonia andRome; but before they yielded to imperialism, they had comeat many points very near to modern political practice. Andthe stages by which the approach was made are comparativelyplain. It is probable, to begin with, that the governments depicted in Homer were not the first but the second form of theprimitive city constitution . The king had doubtless first of allbeen absolute patriarchal chief of the confederated tribes, andthe king's council to be seen in Homer may be taken to representthe success of an aristocratic revolution whose object it had beento putthe heads of the ancient families upon a footing of equalitywith the king. He had thus become merely their patriarchalpresident.243. Citizenship begins to be Dissociated from Kinship. Butthis aristocracy contained the seeds of certain revolution. Asdissociated chieftains the Elders had maintained at least a distinct family authority, and so preserved the integrity of eachseparate family organization; but as associated councillors theyin a measure merged their individuality, at least their solidarity;the law of primogeniture began to be weakened, and a drift wasstarted towards that personal individuality, as contradistinguishedfrom corporate, family individuality, which distinguishes modern.from very ancient politics . Men began to have immediate connection with the state, no longer touching it only through theirfamily chief. Citizenship began to dissociate itself from kinship.THE GOVERNMENT OF ROME. 139-244. Influence of a Non-citizen Class. And by the time individual citizenship had thus emerged, a population alien to theancient kin and unknown to the politics of the ancient city wasat the gates of the constitution demanding admittance. A noncitizen class, alien or native in origin, plebs, clients, metics, orperiæci, assisted to riches by enterprise in trade or by industryin the mechanic arts, or else sprung into importance as the mainstay of standing armies, demanded and gained a voice in theaffairs of states which they had wearied of serving and had determined to rule.― 245. Discussion determines Institutions. And they broughtwith them the most powerful instrument of change that politicshas ever known. The moment any one was admitted to politicalprivileges because he demanded it, and not because entitled to itby blood, it was evident that the immemorial rule of citizenshiphad been finally overset and that thereafter discussion, a weighing of reasons and expediencies, was to be the only means ofdetermining the forms of constitutions . Discussion is the greatest of all reformers. It rationalizes everything it touches. Itrobs principles of all false sanctity and throws them back upontheir reasonableness . If they have no reasonableness, it ruthlessly crushes them out of existence and sets up its own conclusions in their stead. It was this great reformer that the plebshad brought in with them. It was to be thereafter matter fordiscussion who should be admitted to the franchise.-246. Politics separated from Religion . The results, thoughoftentimes slow in coming, were momentous. Laws and institutions took on changed modes of life in this new atmosphere ofdiscussion . The outcome was, in brief, that Politics took precedence of Religion. Law had been the child of Religion: it nowbecame its colleague . It based its commands, not on immemorial customs, but on the common will . The principles of government received the same life . Votes superseded auguries andthe consultation of oracles. Religion could not be argued; polities must be. Their provinces must, therefore, be distinguished .Government must be the ward of discussion: religion might staywith the unchanging gods.247. Growth of Legislation . Nor was this the only conse-140 THE GOVERNMENT OF ROME.quence to law. Once open to being made by resolution of assemblies, it rapidly grew both in mass and in complexity. It becamea multiform thing fitted to cover all the social needs of a growing and various society; and a flexible thing apt to be adjusted tochanging circ*mstances . Evidently the legislation of moderntimes was not now far off or difficult of approach, should circ*mstances favor.- 248. Empire. Finally, the conquests of the Greeks underAlexander suggested, and Rome in her conquering might supplied, what had not been dreamed of in early Aryan politics,namely, wide empire, vast and yet centralized systems of administration. The first framework was put together for the organization of widespread peoples under a single government. Ancientpolitics were shading rapidly off into modern.REPRESENTATIVE AUTHORITIES.On Roman Institutions:Arnold, W. T., " Roman Provincial Administration, to the Accession ofConstantine the Great. " London, 1879.Bluntschli, J. C., " Allgemeine Staatslehre. " Book I. , Chap. III.Coulanges, F. de, " The Ancient City. " Trans. by Willard Small, Boston,1882.Fowler, W. Warde, " The City State of the Greeks and Romans. " London and N.Y., 1893.Harper's " Dictionary of Classical Literature and Antiquities, " edited byH. T. Peck. N.Y. , 1897.Herzog, " Geschichte und System der römischen Staatsverfassung. "1884-1887.Madvig, " Verfassung und Verwaltung des römischen Staates. " 1881- 1882.Marquardt and Mommsen, " Handbuch der römischen Alterthümer. "6 vols. 1871.Mommsen, T., " Römisches Staatsrecht. " 3rd. ed. , 1887-1888 .66 Smith, Dictionary of Grecian and Roman Antiquities. " 1858.Willems, "Droit Public Romain. " 6th. ed. , 1889 .On points of Roman History:Arnold, T., "History of Rome, " to the second Punic war. 1846-1849 .Capes, " The Early Empire. " (Series of Epochs of Ancient History. )THE GOVERNMENT OF ROME. 141Gibbon, "Decline and Fall of the Roman Empire."How, W. W., and Leigh, H. D., “ A History of Rome to the Death of Cæsar." London and N.Y. , 1896. Best short history based uponrecent authorities.Ihne, " History of Rome." 3 vols. 1871 .Mericale, " History of the Romans under the Empire."Mommsen, T., "History of Rome " and " Provinces of the Empire."Niebuhr, " Lectures on the History of Rome. "IV.ROMAN DOMINION AND ROMAN LAW.249. Currency of Roman Law. - Roman law has entered intonearly all modern systems of jurisprudence as the major elementin their structure not only, but also as a chief source of theirprinciples and practice, having achieved perpetual dominancyover all legal conception and perpetual presidency over all legaldevelopment by reason alike of its singular perfection and itsworld- wide currency. It was Roman empire which gave toRoman law both its quality and its universality. The characterof Roman law and the course and organization of Roman conquests are, therefore, topics which must run together.250. Character of Early Roman Law. Until Rome had gonequite far in her career of conquest Roman law was, no doubt,little more noteworthy than Greek law or early Germanic custom.In the early history of the city her law was only a body of ceremonial and semi -religious rules governing the relations of theprivileged patrician gentes to each other and to the public magistrates . Solemn arbitration under complex symbolical formswas almost the whole of legal practice, outside private adjudications of law by family authorities. If any provision existed forsecuring the rights of a non- patrician, he could know what itwas only by putting his case to the test of a trial; and he knewthat even when that case had been brought to a successful issueno precedent had been established; it was still a secret with theprivileged classes what the general rules of the law were. Theproper procedure for the settlement of disputes was a state secret,from the knowledge of which the commonalty was entirely shutout. The College of Pontiffs directed these matters as they 142ROMAN DOMINION AND ROMAN LAW. 143pleased, as the sole authoritative interpreters of the law; and thepontiffs were patricians.251. Rome's Lay Religion.in Rome between religion and politics . Not that there existed a"union of church and state, " to use our modern phrase; therewas no difference between the two. The state was bound toobserve the obligations of religion, and to maintain priestlyoffices whose occupants should mediate between the gods and thecity. A College of Pontifices interpreted the sacred law, arrangedthe ceremonial calendar, gave out the formula for suits, and preserved or adapted every ancient practice; the Quindecemviri keptthe Sibylline books; the Augurs took the will of the gods fromthe signs of the heavens, the flight of birds, and the entrails ofsacrificial beasts. But there was no sacerdotal class . The menput into these sacred offices were laymen and politicians, like anyother officers of state. The Pontifices were a college of lawyers;their power was political, not ecclesiastical. The Roman hadlittle sentiment in matters of religion . He deemed himselfbound to a definite service of the gods; but that service could bedischarged by a definite ceremonial and an exact observance oftimes and forms, in scrupulously respecting which he fulfilled hiswhole duty and was quit of further obligation . It was not unsuitable, therefore, that his lawyers should also be his priests.His worship smacked of the performance of contract, and had nosavor of love or devotion about it.There was no distinction made252. And yet, though the priestly offices were in fact political,it was easy to make them seem more sacred than the rest, andthe patricians were able to maintain their monopoly in thepriestly colleges longer than anywhere else in the official make-up of the state.It was an enormous advantage, of course, to keepthese offices within their class. The pontiffs alone interpretedthe law and doled out its remedies; the sure dictation of prophecyrested with the priests; the augurs could postpone public assemblies, declare legislative bills out of order, hinder or permitaction at will, in the interest, when they chose, of a party.253. Plebeian Discontent with the Law: the XII. Tables.the breaking up of this selfish and narrow system, as in themodification of all political practice, the imperative discontent- In144 ROMAN DOMINION AND ROMAN LAW.of the plebeians was the chief force. They early demanded toknow the law as well as to be admitted to the exercise of themagisterial power. The first step upon which they insisted wasthe codification and publication of existing law. Accordingly,in 451 and 450 B.C. , the now celebrated XII. Tables were preparedand made public by two successive special commissions of ten,the Decemvirs. The first decemvirate commission consistedaltogether of patricians, and is said to have prepared the firsttentables ' of the law. The second included three plebeiansand added two more tables to the code. Probably this was thefirst time that the legal practices of the city had been reduced toanything like systematic statement; and in being stated theymust have been to a certain extent modified . Written expositionwas a thing almost entirely foreign to the habit of that primitiveage; both because of the limitations imposed by mental habit,therefore, and of the difficulties created by the unwilling materials with which they had to write, the sentences of the lawengraved upon the copper tablets set up in the Forum must havebeen brief and compact. By being thus condensed the law must,moreover, have lost some of its original flexibility and havebecome the more rigid for being made the more certain. (Seesecs. 126, 183, 184. )-254. Growth of the Law by Pontifical Interpretation. Thecodification of the law by no means took its interpretation out ofthe hands of the pontifices. The Tables did, indeed, give certainty to the general provisions of the law, but they did notimpart certainty to its application to individual cases . "Thestructure of the provisions of the Tables was not such as to enablethe plain citizen to apply them to concrete cases, or know howto claim the benefit of them, without some sort of professionaladvice " (Muirhead) . It was necessary in each case, as before,to resort to some one who was familiar with the established interpretation; and to whom else could resort be had but to the pontiffs,the official lawyers of the state? They alone could interpretwith authority as well as with knowledge. The forms of legalactions had not been made public in the Tables; and it was, afterall, upon the knowledge of them that the patrician monopoly ofjustice chiefly rested. Not yet for two centuries and a half wereROMAN DOMINION AND ROMAN LAW. 145these sacred formulas to be fully published, and not until theybecame common property could the science of interpretation passfrom the priests to the common lawyers who were without office .255. The XII. Tables became the corner- stone of the wholestructure of Roman jurisprudence. Henceforth all legal interpretation was to begin with and be built upon them. But theirexistence did not alter the principle of growth implanted fromthe first in the law of Rome. It was to grow, in the future as inthe past, by interpretation in all that concerned the rights of individuals, by adjustment rather than by legislation, not by the formulation of new principles so much as by the new application of old ones. And the official source of this interpretation, so far asthe meaning of the Tables themselves was concerned, was now,as before, to be the college of pontiffs. The pontifices had fromthe first been always the assessors, or professional associates, ofthose who administered justice. Questions of Quiritarian rightwent by their remits to the centumviral courts; all other questions to single lay judices or referees, with explicit direction howthey should act, and upon what interpretation of the law. Theformulation of the Tables did not interrupt this pontifical function of authoritative reference and instruction. The College"appointed one of its members every year to give ' opinions ' onquestions of private law, " and their interpretation continued tobind every court and every judex.256. They sought in their interpretations to bring everythingunder the letter of the law. Their ' opinions ' (responsa) were,nevertheless, a means of development, inasmuch as they soughtin their setting forth of the applications of the law to arrive ata sort of " common-law equity " which should meet the case inhand and yet not violate the strict spirit of the law. They didnot hesitate to stretch the letter of a provision to cover cases notexplicitly contemplated in the strict text or tradition, and soslowly brought into practice what has very happily been called"an abstract equity immersed in matter. " Until the Prætorscame the official responses of the pontiffs were the law's only internal means of growth or amelioration; and the Prætors did notcome for nearly a hundred years after the making of the Tables.257. The Prætor. - The office of Prætor was created in the146 ROMAN DOMINION AND ROMAN LAW.year 366 B.C., to take the judicial functions of the consuls (seesec. 192); because the consular office had been thrown open tothe plebeians, and the patrician Senate dreaded to see any but anofficer chosen out of the privileged class entrusted with theauthoritative application of the law. The consuls had inherited.the general and indefinite judicial powers of the kings; the Prætor received the judicial powers of the consuls. What had intheir hands been one great function among many became in thehands of the Prætor the special power of a single office. Likeevery other officer, the Prætor possessed the imperium of themagistrate; with the imperium went always a sovereign discretion in administration . The law was henceforth to find a newsoil in which to grow in the discretion of the Prætor. To himall citizens might resort for the settlement of conflicting claims.He did not himself settle the matter between them, but he laidthe legal basis for its settlement. Having heard their statementof their case, he sent it for decision, according to old custom, tosome private citizen whomhe nominated judex, or arbitrator, forthe occasion, accompanying his reference 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 decisionmust conform. Very many cases were referred thus each toa single judex; in many instances, again, they were sent to anumber ofjudices who constituted a sort of board or jury to lookinto the merits of the controversy. Always, however, Prætorand judices stood towards each other in much the same relationthat the judge and jury of our own system hold towards oneanother: except that the Prætor and judices did not sit togetherand hear cases at the same time. They acted separately and atdifferent times. But the Prætor interpreted the law, and thejudices passed upon the facts .258. The Law and the Prætor's Application of it. The lawwhich the Prætor had to expound and apply in the formulæ orbriefs which he sent down to the judices, as at once their warrantand their instructions, was not a law constantly advanced andadjusted by legislation . It was, for the most part, only the XII.Tables, a small body of Senatus- consulta, or senatorial decrees,and a few legal principles introduced by popular agitation duringROMAN DOMINION AND ROMAN LAW. 147the long struggle of the plebeians for political privilege. Offormal law-making such as we are nowadays accustomed to look.for there was almost none to help him. He himself, therefore,became to all intents and purposes a legislator . The growth ofthe city, and the constant changes of circ*mstance and occasionfor the use of his law functions which must have attended itsgrowth, of course gave rise to cases without number which thesimple, laconic laws of the early time could not possibly havecontemplated. To these, however, the Prætor had to apply, withwhat ingenuity or originality he possessed, such general rulesand conceptions as he could discover in the ancient codes ordevise for modern practice; and of course so great a developmentof interpretation insensibly gave birth to new principles . ThePrætor, consciously or unconsciously, became a source of law.259. Prætor vs. Pontiff. Here was an officer sure to prove avery formidable rival to the college of pontiffs in giving shapeto the law. The pontiffs were no less than before the officialinterpreters of code and ceremonial. Their responses were stillthe only authoritative ' opinions ': they were not to lose theirlegal place in the singular system of the complex state until theRepublic itself came to an end. But the Prætor's discretion inshaping remedies to meet wrongs, in the adoption of a new procedure, smacking of new principles, to meet new cases, none theless made strides towards usurping their place of guidance.Plebeians were admitted to the prætorian office in 337 B.C. , notthirty years after its creation, and a full generation before a plebeian found his way into the pontifical college; and the changewas not likely to slacken the Prætor's energy in drawing to himself a masterful control in the administration of the law. ThePrætor's ' equity, ' moreover, had a natural advantage over theinterpretation of a strict law to which the pontiffs were shut in.He could find new principles and they could not. The futurewas for him.260. The Prætor's Edict. At the beginning of his year ofoffice the Prætor published an Edict in which he formally acceptedthe principles acted on by his predecessors, and announced suchnew rules of adjudication as he intended to adopt during his yearof authority. These new rules were always, in form at least,148 ROMAN DOMINION AND ROMAN LAW.rules of procedure. The Prætor announced, for example, that hewould, hereafter, regard property held by certain methods,hitherto considered irregular or invalid, as if it were held according to due and immemorial form, and would consider the titleacquired valid for all practical purposes. He did not assume tomake such titles valid: that would be to change the law. Buthe could promise in adjudicating cases to treat them as if theywere valid, and so practically cure their defects. In a word, hecould not create rights; but he could create and withhold remedies.It was thus that through successive edicts the law attained animmense growth. And such growth was, of course, of the mostnormal and natural character. By such slow, conservative, practical, day to day adjustments of practice the law was made easilyto fit the varying and diversified needs of a growing and progressive people.-261. A Prætor Peregrinus. A little more than one hundredyears went by, and then it was necessary to appoint an additionalPrætor, a Prætor peregrinus (" Prætor qui jus dicit inter peregrinos "was his full descriptive title) , a Prætor for the foreigners oraliens who more and more multiplied in the city, to the quickening of its trade and to the extension of its life and power. It waspresently necessary to distinguish the Prætor of the older, undivided office as the Prætor urbanus, the City Prætor, the Prætorfor citizens. The functions of the Prætor peregrinus were similarto those of the City Prætor, but much less limited by the prescriptions of old law. He administered justice between residentforeigners in Rome itself, between Roman citizens and foreigners,and between citizens of different cities within the Roman dominion. Roman law, the jus civile, the law administered and developed by the Prætor urbanus, was only for Romans. Itsorigins and fundamental conceptions marked it as based upontribal customs and upon religious sanctions which could onlyapply to those who shared the Roman tradition and worship. Itcould not apply even as between a Roman and an alien. TheLatin and Italian towns which Rome brought under her dominionwere, therefore, suffered to retain their own law and judicialpractices for their own residents, so far at least as their retentionoffered no contradiction to Rome's policy or authority; but the____ROMAN DOMINION AND ROMAN LAW. 149law of one town was of course inapplicable to the citizens of anyother, and therefore could not be used in cases between citizensof different towns. In all such cases, when Roman law couldnot be appealed to, the Prætor peregrinus was called upon todeclare what principles should be observed.262. The Jus Gentium. - The first incumbents of this delicateand difficult office, of Prætor peregrinus, were doubtless arbitraryenough in their judgments, deciding according to any roughgeneral criteria of right or wrong, or any partial analogies tosimilar cases under Roman law that happened to suggest themselves . But they seem, nevertheless, to have had a sincere purpose to be just, and at length the Roman habit of being systematicenabled 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 legalpractices and principles obtaining among the subject nationsamong whom their duties lay, and they presently discerned certain substantial correspondences of conception among these onmany points frequently to be decided . With their practical turnfor system, they availed themselves of these common conceptionsof justice as the basis of their adjudications. They sought moreand more to find in each case some common standing-ground forthe litigants in some legal doctrine acknowledged among thepeople of both. As these general principles of universal acceptance multiplied, and began to take systematic form under thecumulative practice of successive Prætors, the resultant body oflaw came to be known among the Romans as thejus gentium, the lawof the nations, the law, that is, common to the nations amongwhose members Roman magistrates had to administer justice.263. The Jus Gentium not International Law. This body oflaw had, of course, nothing in common with what we now callthe Law of Nations, that is, International Law. Internationallaw relates to the dealings of nation with nation, and is in largestpart public law the law of state, of political, action (secs. 1457,1458) . The jus gentium, on the other hand, was only a body ofprivate and commercial law, chiefly the latter. It had nothingto do with state action, but concerned itself exclusively with therelations of individuals to each other among the races subject to-150 ROMAN DOMINION AND ROMAN LAW.Rome. Rome decided political policy, her Foreign Prætor decided only private rights .- But 264. Influence of the Jus Gentium upon the Jus Civile .the jus gentium attained an influence of great importance,even over the development of Roman law itself. Its principles,partaking of no local features or special ideas produced only bythe peculiar history or circ*mstances of a single people, but madeup of apparently universal judgments as to right and wrong, justice and injustice, seemed to be entitled to be considered statements of absolute, abstract equity. As they became perfected byapplication and studious adaptations to the needs of a variousadministration of justice, it became more and more evident thatthe jus civile, the exclusive law under which the Roman lived,was arbitrary and illiberal by comparison. The Prætor peregrinus began to set lessons for the Prætor urbanus. The jus civilebegan to borrow from the jus gentium; and as time advanced,it more and more approximated to it, until at last it became completely liberalized by its example.265. Completion of the Prætor's Power. The jus gentium wasnot foreign law: it became Roman law by adoption at the handsof the Prætor. It was " that part of the private law of Romewhich was essentially in accordance with the private law ofother nations. " It became positive law so soon as it found application in the courts of the city magistrates, binding Romansthemselves no less than did the jus civile, which was based uponcustom and statute. It was simply the jus æquum as contradistinguished from the jus strictum. It found its recognition andits way into use through the Prætor's ' formulas, ' the authoritativeinstructions with which the Prætor assigned cases for decision toa judex; and it found at last as free an entrance through the' formulas ' of the Prætor urbanus as through those of the Prætorperegrinus.266. The Prætor peregrinus was probably the first to adoptand develop the formulary procedure; for in his court the formsof action recognized in the Tables applied only when both of thelitigants possessed full jus commercii, a standing to which Romewas slow to admit her closest allies. But the real introductionof the procedure into the body of Roman law proper of courseROMAN DOMINION AND ROMAN LAW. 151took place at the hands of the Prætor urbanus, in those casesarising between Roman citizens themselves to which the jusstrictum could not be made to apply. ' Formulas ' were admissibleonly where a judex was appointed and instructed de novo; theycould not be used in cases which went to the centumviral courtor in cases which the magistrate himself decided without reference, by some summary process .267. So free a procedure tended not only to supplementbut also to supplant the too inflexible and unamendable actionsof the old law, and really infringed upon the jus strictum in the most direct manner. A sharp and final issue was joined,consequently, between the jus prætorium of the Prætor urbanusand the interpretation of the college of pontiffs, which in the endonly legislation could decide. In the year 150 B.C. , legislationdecided it. By the Lex Ebutia it was in that year enacted thatthe formulary procedure might be employed by Roman citizens inall cases set up in the court of the Prætor urbanus, even in thosefor which the old law had provided; and that notwithstandingthe fact that by that time plebeians had long since made theirway into the office of Pontifex Maximus and had offered publicinstruction to all comers in the mysteries of the old procedure,and that the old formulas of the jus strictum had been publishedand a commentary written upon them, which had made them noless the property of laymen than of priests. The Prætor's directand simple forms suited a growing and hurrying life; theothers were outgrown and discredited . The early years of theEmpire saw the use of the old forms actually forbidden by statute.268. Administration of Justice in the Provinces. The authority of the Foreign Prætor did not extend beyond Italy, beyondthe city's immediate dependencies. In the ' Provinces ' properthe governors exercised the functions of Prætor peregrinus. Thetowns of the provinces, like the towns of Italy, were for longleft with their own municipal organization and their own systemsof judicature. But between the citizens of different districts ofa province there were cases constantly arising which had tobe brought before the governor as judge . Whether as proconsul therefore, or as pro- prætor, or under whatever title, the152 ROMAN DOMINION AND ROMAN LAW.governor was invested with prætorial functions, as well as withmilitary command and civil supremacy. It was with principlesof judicial administration that the governor's edict, issued on entering upon office, was largely concerned . Here was another andstill larger field for the growth of the jus gentium, an almostunlimited source of suggestion to Roman lawyers.-269. The Law of Nature. As Rome's conquest grew and herlaw expanded she did not fail to breed great philosophical lawyerswho saw the full significance and importance of the jus gentiumand consciously borrowed from it liberal ways of interpretation.And they were assisted at just the right moment by the philosophy of the Greek Stoics. The philosophy of the Stoics was inthe ascendency in Greece when Rome first placed her own mind.under the influence of her subtile subjects in Attica and the Peloponnesus: and that philosophy was of just the sort to commenditself to the Roman. Its doctrines of virtue and courage anddevotion seemed made for his practical acceptance: its exaltationof reason was perfectly congenial to his native habit. But itscontribution to the thought of the Roman lawyer was its mostnoteworthy product in Rome.270. The Stoics, like most of the previous schools of philosophers in Greece, sought to reduce the operations of nature bothin human thought and in the physical universe to some simpleformula, some one principle of force or action, which they couldrecognize as the Law of Nature. They sought to square humanthought with such abstract standards of reason as might seem torepresent the methods or inspirations of Universal Reason, theReason inherent, indwelling in Nature. In the mind of theRoman lawyer this conception of a Law of Nature connected itselfwith the general principles of the jus gentium, and served greatlyto illuminate them. Probably, it seemed, these conceptions ofjustice which the Foreign Prætors had found common to thethought of all the peoples with whom they had come into contact were manifestations of a natural, universal law of reason, aLaw of Nature, superior to all systems contrived by men, implanted as a principle of life in all hearts.271. The jus gentium thus received a peculiar sanction andtook on a dignity and importance such as it had never had soROMAN DOMINION AND ROMAN LAW. 153long as it was merely a body of empirical generalizations. Itssupremacy was henceforth assured. The jus civile more and moreyielded to its influences, and more and more rapidly the two systems of law tended to become but one.272. Roman Citizenship and the Law. This tendency wasaided by the gradual disappearance of all the more vital distinctions between the citizen of Rome herself and citizens of her subject cities and provinces. Step by step the citizens first of theLatin towns, then of the Italian cities, then of favored outlyingdistricts of the Empire, were admitted first to a partial andfinally to a complete participation in Roman citizenship . Andof course with Roman citizenship went Roman law. In thisway the jus civile and the jus gentium advanced to meet eachother. Under the emperors this drift of affairs was still furtherstrengthened and quickened till Caracalla's bestowal of citizenship upon all the inhabitants of the Roman world was reached asa logical result.273. The Jurists. As Roman law grew to world- wide proportions and became more and more informed by the spirit of an elevating philosophy and the liberal principles of an abstract equity,it of course acquired a great attraction for scholarly men and hadmore and more the benefit of studious cultivation by the bestminds of the city. The Roman advocate was not the trained andspecially instructed man that the modern lawyer is expected toFor some time after the law began to be systematicallystudied there were no law schools where systematic instructioncould be obtained; there were no lawyers' offices in which thenovice could serve, and discover from day to day the ins and outsof practice. The advocate was scarcely more than an arguer ofthe facts before the judices: he did not lay much stress upon hisown view of the law, or often pretend to a profound acquaintancewith its principles. But there did by degrees come into existencea class of learned jurists, a sort of literary lawyers, who devotedthemselves, not so much to advocacy before the jury- courts, asto the private study of the law in its developments from the XII.Tables through the interpretations of the prætorial edicts and thesuggestions of the jus gentium. They set themselves to searchout and elucidate the general philosophical principles lying at154 ROMAN DOMINION AND ROMAN LAW.the roots of the law, to explore its reasons and systematize itsdeductions. These jurisprudents were of course not slow to drawabout themselves a certain clientage. Though entirely distinctas a class from the ' orators, ' or barristers, who assisted clientsin 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 attractedpupils, too, with whom they discussed hypothetical cases of thegreatest possible scope and variety.274. Influence of the Jurists. -- In the hands of these privatejurists the law received an immense theoretical development.And this very much to its advantage. For Roman thinking,like Roman practice, was always eminently conservative. Thejurists took no unwarrantable liberties with the law. Theysimply married its practice to its philosophy, no one forbiddingthe banns . They most happily effected the transfusion ofthe generous blood of the jus gentium into the otherwise somewhat barren system of the jus civile. They were chief instruments in giving to Roman law its expansiveness 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 werealways hearkened to with great respect. Their published discussions of fictitious causes came to have more and more directinfluence 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 ofthe greatest permanent interest and importance eventually spranginto existence. The jurists collected and edited the writtensources of the law, such as the Edicts of the Prætors, and setthem in the fuller and fuller light of an advancing scientific criticism . Their commentaries became of scarcely less importancethan the Edicts themselves, containing, as they did, the reasonedintent of Table and Edict.275. The Jurisconsults under the Empire. This scientific cultivation of the law by scholarly students began before the end ofthe Republic; was far advanced, indeed, at the time the Empirewas established . The beginnings of the scientific law literatureof which I have spoken date as far back as 100 B.C.ROMAN DOMINION AND ROMAN LAW. 155The dates 100 B.C. and 250 A.D. are generally taken as marking thebeginning and end of the important literary production on the part of thejurists. The most distinguished names connected with this literature arethose of Papinian, Ulpian, Gaius, and Julius Paulus.276. It was under the emperors, however, that the greater partof this peculiar literary and interpretative development at thehands of the jurists took place. For under the imperial systemthe jurists were given an exceptional position of official connectionwith the administration of the law such as no other similar classof lawyers has ever possessed under any polity. Certain of themore distinguished of them were officially granted the jus respondendi which custom had already in effect bestowed upon them,but which had, until the end of the Republic, belonged only tothe pontiffs. It was henceforth their right to give authoritativeopinions which should be binding upon judices and juries . Evenunder the Republic the opinions of the jurisconsults had beenauthoritative in fact; what the imperial commission did was torender them authoritative in law. Of course if advocates or litigants who were on opposite sides in any case could produceopposite or differing opinions from these formally commissionedjurisconsults, it devolved upon the judices to choose betweenthem; but they were hardly at liberty to take neither view andstrike out an independent judgment of their own, and when thejurisconsults agreed the judices were bound to decide in accordance with their opinion . Certain writers - ' text writers, 'we call them on our own law have, by virtue of perspicacityand learning, acquired an influence in our courts not muchinferior to that of the Roman jurisconsults, but no Blackstone or Story has ever amongst us been commissioned by thestate to be authoritative.277. Under the Empire the jurisconsults acquired more than the rightof response: they became actively engaged in the administration of law,exercising judicial functions and applying to actual adjudication the testswhich they had in the republican period applied only in the form of unofficial opinions. In the time of Augustus we find two law schools in Rome,and later times saw many others established in important provincial cities.278. Imperial Legislation. The influence of the jurisconsultsextended beyond the administration to the creation of law. Leg-156 ROMAN DOMINION AND ROMAN LAW.islation under the early emperors, from Augustus to Hadrian,retained something of its old form. During the reign of Augustus the popular assemblies were still given leave to pass upon thelaws which the Emperor, as tribune, submitted to them; andduring a great part of the imperial period the Senate was formally consulted concerning most of the matters of law and administration over which it had once had exclusive jurisdiction .But neither Senate nor people were independent. The formerwas at the mercy of the Emperor's power as censor; the latterwere at the disposal of his powers as tribune. Law, consequently, came to emanate more and more undisguisedly from theEmperor's single will, from his edicts as magistrate and fromhis instructions and decisions as head of the judicial administration. Happily for Roman law, the emperors made trusted counsellors of the leading jurisconsults and suffered themselves to beguided by them in their more important law-creations and judgments. Probably most edicts and imperial decisions wereprepared, if not conceived, by competent lawyers. Imperiallegislation, therefore, in the most critical period of its earlydevelopment, was under the guidance of the most enlightened andskilful jurists of the time, and was kept to the logical lines of itsnormal and philosophical growth. The jurisconsults may be saidto have presided over all phases of its development at the important period when that development was conscious and deliberate.279. Codification of the Edict . The last important step in thepreparation of Roman law for modern uses was its codification .Codification began with the Prætor's Edict. It had become intime a very complex and miscellaneous document. The bulk ofwhat his predecessors in office had done each Prætor adopted:their edicts became his own, and the body of practice which thusran on from year to year became known at length as the edictumperpetuum, the perpetual edict, that part of it which the Prætor in office accepted from his predecessors as the edictum tralaticium, the edict handed down from Prætor to Prætor. Growingyearly by accretion , the edict had by Cicero's time become principally edictum tralaticium, and had come to resemble a body ofmiscellaneous case law. It was high time to subject it to revision, collation, consolidation, give it consistency and simplicity.ROMAN DOMINION AND ROMAN LAW. 157"Hadrian (before the year 129 A.D. ) instructed the great juristSalvius Julianus definitively to revise the edicts of the prætorurbanus and the prætor peregrinus, adding at the same time themarket regulations (as to the liability of the vendor for faults,etc. ) contained in the edict of the curule ædiles. By order ofthe emperor, the whole was then ratified by a Senatusconsultum.This is the so- called Edictum Hadrianum or Julianum . Theedict issued by the provincial governors in the administration ofjustice (edictum provinciale) was similarly dealt with and finallyreduced to definite form. " (Sohm. ) Prætors were henceforthdeprived of the imperium. They were obliged to receive theedict as it had been codified, and to use it unchanged.280. Final Codification of the Law. It still remained to reduce to a single consistent body the yearly accumulating mass ofimperial edicts , senatusconsulta, rescripts, and official opinionsby which the imperial period had seen the law varied and increased. The most important efforts of this sort were thosemade by Theodosius (379-395 A.D. ) and Justinian (529-534 A.D.).The Theodosian Code is important because it influenced thelegislation of the first Teutonic masters within the Empire; theJustinian, because it was by far the most complete and scientificof the codes, and because it has been the basis of subsequentstudies and adaptations of Roman legal practice the world over.The republican legislation and the prætorial edicts of the period.of the Republic had received final formulation and fusion at thehands 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 digestingof the writings of the great law writers; the Justinian Code,however, which was prepared under the direction of the greatlawyer, Trebonian, was singularly successful in all branches ofthe difficult and delicate task of codification . It consists, as wehave it, of four distinct parts: 1. The Pandects, or Digest of thescientific law literature; 2. The Codex, or Summary of imperiallegislation; 3. The Institutiones, a general review or text-bookfounded upon the Digest and Code, an introductory restatement,in short, of the law; and 4. The Novella, or new imperial legis-158 ROMAN DOMINION AND ROMAN LAW.lation issued after the codification to fill in the gaps and cure theinconsistencies discovered in the course of the work of codifyingand manifest in its published results .281. The whole constituted that body of laws which was to beknown to the times succeeding the twelfth century as the CorpusJuris Civilis, or Body of the Civil Law. All law was now civillaw, the law of Rome; there was no longer any necessary distinction between jus civile and jus gentium. The Corpus Juris Civilisbecame at once the law of the Eastern Empire, and for a timethe law of Italy also . It did not dominate the legal developments of the West outside of Italy, however, until the MiddleAges, for Justinian had his capital at Constantinople and nevercontrolled any important part of what had been the western halfof the old Empire, except Italy, and even Italy he united onlytemporarily and precariously to his eastern dominions. HisCode entered Europe to possess it through the mediation of theuniversities and ecclesiastics of the Middle Ages (sec. 328) .- --282. The Completed Roman Law: its Municipal Life. — Thebody of law thus completed by sagacious practical adaptations,careful philosophical analysis and development, and final codification has furnished Europe, not with her political systems, butwith very many, if not most, of her principles of private right.The Corpus Juris has been for later times a priceless mine ofprivate law (secs. 328-349) . The political fruits of Roman law,for it has had such, are seen in municipal organization .Though Rome for the most part suffered the towns in her provinces to retain their own plans of government, she of course keptan eye upon the management of their affairs, and her influenceand interest were ever present to modify all forms and practiceswhich did not square with her own methods. She besides dottednot only Italy, but the banks of the Rhine and other strategicallyimportant portions of her dominions with colonies of her owncitizens, who either built fortress towns where there had beforebeen no centred settlement at all, or sat themselves downin some existing native village. In both cases they importedRoman methods of city government. Everywhere, therefore,native towns were neighbors to Roman municipal practice, andyearly took more color of Roman political habit from contactROMAN DOMINION AND ROMAN LAW. 159with it . By the time of the Teutonic invasions western andsouthern Europe abounded in municipalities of the strict Romanpattern.283. Diffusion and Influence of Roman Private Law. - But itwas private, not public, law which was the great gift of the imperial codes. With the widening of the citizen right, the private law of Rome had spread to every province of the Empire.As it spread, it had been generalized to meet the varied needsand circ*mstances of infinitely various populations, to fit thetrade and property relations of the vast Roman world, until ithad become, as nearly as might be, of universal use and acceptability . It made wide and scientific provision for the establishment, recognition, and enforcement of individual rights andcontract duties . It was incomparably more many- sided and adequate than anything the barbarian who for a time disturbed itssupremacy could invent for himself: and it proved to have anticipated almost every legal need he was to feel in all but the laststages of his civil development. It was to be to him an exhaustless mine of suggestion at least, if not a definite store of readymade law.-284. Roman Legal Dominion in the Fifth Century. — The invading hosts who came from across the Rhine in the fifth centuryof our era found Roman law and institutions everywhere in possession of the lands they conquered. Everywhere there weretowns of the Roman pattern , and populations more or less completely under the dominion of Roman legal conceptions and practices. Their dealings with these institutions, the action andreaction upon one another of Roman law and Teutonic habit,constitute in no small part the history of government in theMiddle Ages.-- 285. Influence of Mosaic Institutions. It would be a mistake,however, to ascribe to Roman legal conceptions an undivided sway overthe development of law and institutions during the Middle Ages. TheTeuton came under the influence, not of Rome only, but also of Christianity; and through the Church there entered into Europe a potent leavenof Judaic thought. The laws of Moses as well as the laws of Rome contributed suggestion and impulse to the men and institutions which were toprepare the modern world; and if we could but have the eyes to see thesubtle elements of thought which constitute the gross substance of our160 ROMAN DOMINION AND ROMAN LAW.present habit, both as regards the sphere of private life and as regards theaction of the state, we should easily discover how very much besides religion we owe to the Jew.REPRESENTATIVE AUTHORITIES.For the texts of Roman law, seeCorpus Juris Civilis, edited by Krüger, Mommsen, and the bros. Kriegelli.3 vols. Berlin and Leipsic, 1872-1875.Bruns, C. J., Fontes Juris Romani Antiqui.Tübingen, 1872. Fifth(improved) edition by Mommsen. Freiburg, 1887.Huschke, Jurisprudentia Antejustiniana. Leipsic, 1879.For commentary and exposition, seeHolland, T. E. (editor) , " Institutes of Justinian. "Poste (translator) , Gaii Institutionum Juris Civilis.Hadley, Jas., " Introduction to Roman Law. " N.Y., 1880.Sohm, Rudolph, " Institutes of Roman Law," trans. from the German,Oxford, 1892. The best of the text-books.Morey, W. C., " Outlines of Roman Law," and authorities there cited.N.Y., 1885. A brief manual.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., " Lehrbuch der Institutionen des heutigen römischenRechts." Giessen , 1814. Translations, N.Y., 1845; Phila. , 1883.Thering, R. v. , " Geist des römischen Rechts." Of this work there is aFrench translation .For special expositions of the historical development of Roman law,seePhillimore, Jno. G., " Introduction to the Study and History of RomanLaw." London, 1848.Rivier, Alphonse, " Introduction historique au droit Romain." Brussels,1881.Clark, E. C., " Early Roman Law. Regal Period. " London, 1872.Mommsen, Theodor, " History of Rome, " passim, and " Römische Staatsrecht." 2 vols.Puchta, " Kursus der Institutionen , " 1841; ninth edition by Krüger,2 vols. , 1881.Walter, " Geschichte des römischen Rechts. " 2 vols. , 3 eds. 1840-1860.ROMAN DOMINION AND ROMAN LAW. 161Savigny, F. K. v., "Geschichte des römischen Rechts im Mittelalter."Heidelberg, 1815-1831 . French translation, 1839. English translation of Vol. I., Edinburgh, 1829.Meyer, J. D., " Esprit, Origine, et Progrès des Institutions Judiciairedes Principaux Pays de l'Europe. " Paris, 1823.For comparisons of Roman law with several modern systems, seeMackenzie, Lord, " Studies in Roman Law, with Comparative Views ofthe Laws of France, England, and Scotland. ” Third edition, 1870.Reeves, Jno. , "History of the English Law, from the Time of the Romansto the End of the Reign of Elizabeth. With an Introductory Dissertation on the Nature and Use of Legal History, the Rise andProgress of Our Laws, and the Influence of the Roman Law on theFormation of Our Own, " by W. A. Finlason. London, 1869.Williams, Jas., " The Institutes of Justinian illustrated by English Law."London, 1883.Scrutton, T. E., “ Influence of the Roman Law on the Law of England. "Camb. Univ. Press, 1885.Schmidt, "Der prinzipielle Unterschied zwischen der römischen undgermanischen Rechte." 1853.Hahn, "Die materielle Uebereinstimmung der römischen und germanischen Rechtsprinzipien." 1856.Concerning the general institutional significance of Roman law, seeSeeley, J. R., " Roman Imperialism. "Bryce, Jas. , " The Holy Roman Empire."Maine, Sir H. S., " Ancient Law," " Early Law and Custom, " and " EarlyHistory of Institutions."Austin, Jno., " Lectures on Jurisprudence, or the Philosophy of PositiveLaw." 2 vols. London, 1873 .On special points reference may always be profitably made toSmith, Dr. W., " Dictionary of Greek and Roman Antiquities," and toPeck, H. T. (editor), " Harper's Dictionary of Classical Literature andAntiquities." N.Y., 1897.62-21V.TEUTONIC POLITY AND GOVERNMENT DURING THEMIDDLE AGES.286. Contact of the Teutonic Tribes with Rome. -The Teutonictribes which, in the fifth and following centuries, threw themselves into the Western Roman Empire to possess it were not allof them strangers to the polity which they overset. The Romanshad often invaded Germany, and, although as often thrust out,had established a supremacy over the minds at least, if not overthe liberties, of the Germans. Those tribes which had livednearest the Rhine and the Danube, moreover, had long been inmore or less constant contact with the masters of the Mediterranean and the western world, and had, of course, been deeplyaffected by the example of Roman civilization . Teutons had,besides, entered and, so to say, espoused the Roman world ingreat numbers, in search of individual adventure or advantage,long before the advent of the barbarians as armed and emigranthosts . Rome had drawn some of her finest legions from thesegreat races which she could not subdue. Her armies were in thelater days of the Empire full of stalwart, fair-haired Germans.Even her greater officers and officials were oftentimes of thatblood.287. Primitive Teutonic Institutions. When Franks and Gothsand Burgundians moved as militant races to the supplanting ofRoman dominion, they, nevertheless, took with them into westernEurope, torn as it was by Roman dissensions and sapped byRoman decay, a fresh, unspoiled individuality of their own.They had their own original contribution to make to the historyof institutions. Hitherto they had lived under a system ofgovernment combining with singular completeness, though in 162TEUTONIC POLITY DURING THE MIDDLE AGES. 163somewhat crude forms, tribal unity and individual independence .Amongst them, as amongst other Aryan peoples, kinship constituted the basis of association and the primal sanction of authority;and the family was the unit of government. Kinsmen, fellowtribesmen, were grouped in villages, and each village maintainedwithout question its privileges of self-government, legislatingupon its common affairs and administering its common propertyin village meeting. Its lands were the property, not of individuals, but of the community; but they were allotted in separateparcels to the freemen of the community, upon would-be equitable principles, to be cultivated for private, not for communal,profit . Chiefs there were who exercised magisterial powers, butthese chiefs were elected in village meeting. They did not determine the weightier questions of custom, in the administration ofjustice that was the province of the village meeting itself; andsuch judicial authority as they did exercise was shared by'assessors ' chosen from the whole body of their free fellowvillagers.288. Free, Unfree, and Noble. Not all their fellow-villagerswere free. There were some who were excluded from politicalprivilege and who held their lands only as serfs of the freemenof the community; and there were others, lower still in rank,who were simple slaves. There were, again, on the otherhand, some who were more than free, who, for one reason oranother, had risen to a recognized nobility of station, to a position of esteem, and to an estate of wealth above those of the restof the community. But nobility did not carry with it exceptionalpolitical privilege: it only assured a consideration which put itspossessor in the way of winning the greater preferments of officein the gift of the village meeting. The power of the noble depended upon the franchises of his community rather than uponany virtue in his own blood.-289. Intercommunal Government. It was not often that avillage stood apart in entire dissociation from all similar tribalor family centres; but when it did, the powers of its moot (meeting) extended beyond the choice of magistrates, the managementof the communal property, and the administration of communaljustice. It also declared war and appointed leaders of the com-164 TEUTONIC POLITY AND GOVERNMENTmunal ' host. ' Commonly, however, these greater matters of warand of ' foreign relations ' were determined by assemblies representing more than one village. Communities sent out offshootswhich remained connected with them by federal bonds; or independent communities drew together into leagues; and it was thegrand folk-moot of the confederated communities which summoned the ' host ' and elected leaders, which sometimes evenchose the chiefs who were to preside over the administration ofthe several villages.290. Military Leadership: the Comitatus. The leaders selectedto head the ' host ' were generally men of tried powers who couldinspire confidence and kindle emulation in their followers; andsuch men, though in all cases chosen to official leadership onlyfor a single campaign, never even in times of peace ceased to be,potentially at least, the heads of military enterprise and daringadventure. Not uncommonly they would break the monotony ofpeace and dull inactivity by gathering about them a band ofvolunteers and setting forth, spite of the peace enjoyed by theirtribe, to make fighting or find plunder somewhere for their ownsakes. About men of this stamp there gathered generally allthe young blades of the tribe who thirsted for excitement oradventure, or who aspired to gain proficiency in arms. Thesebecame the military household, the comitatus, of their chosenchieftain, his permanent, inseparable retinue, bound to him bythe closest ties of personal allegiance, sitting always at his table,and at once defending his person and emulating his prowess inbattle; a band who looked to him for their sustenance, their military equipment, and their rewards for valor, but who renderedhim in return a gallant service which added much to his socialconsideration and gave him rank among the most powerful of his fellow-tribesmen.291. Contrasts between the Teutonic System and the Roman.These features of tribal confederation and personal supremacy,though suggestive at many points of the primitive Roman state,were in strong contrast with the Roman polity as it existed atthe time ofthe invasions. They were not only rude and primitiveand characteristic every way of a very much less advanced stageof civilization, but they also contained certain principles whichDURING THE MIDDLE AGES. 165were in radical contradiction to conceptions obviously fundamental to Roman state life .292. Roman Allegiance to the State. - The central contrastbetween the two systems may be roughly summed up in thestatement that the Teutonic was essentially personal, the Romanessentially impersonal. Neither the Roman soldier nor theRoman citizen knew anything of the personal allegiance whichwas the chief amalgam of primitive German politics. His subordination was to the state, and that subordination was so complete that, as I have previously said, he was practically mergedin the state, possessing no rights but those of a child of the bodypolitic. His obligation to obey the magistrate in the city or hiscommander in the field lasted only so long as the magistrate's orcommander's commission lasted . Allegiance had no connectionwith the magistrate or the commander as a person: magistrateand commander claimed allegiance only as representatives of thestate, its temporary embodiment. To them, as the state, the citizen or soldier owed the yielding of everything, even of life itself:for as against the state the Roman had no private rights . Whilehe held office, therefore, and shared the imperium, magistrate orcommander was omnipotent; his official conduct could be calledin question only after his term of office was at an end and he hadceased to be the state's self. Of course much decay had comeinto the heart of such principles ere the Empire was forced tobreak before the barbarian; but they never ceased to be centralto Roman political conception. Caesar's CAMEN MAN293. Teutonic Personal Allegiance. With the Teutons, onthe contrary, political association manifested an irresistible tendency towards just the opposite principles. When they came totheir final triumph over the Empire they came ranked and associated upon grounds of personal allegiance. In their old life inGermany, as we have seen (sec. 290) , their relations to theircommanders did not cease at the close of a war sanctioned by thecommunity, though the commission of their leaders did expirethen. Many, and those the bravest and best, - remained members of their leaders' comitatus, bound to him by no public command or sanction at all, but only by his personal supremacy overthem . They even made themselves members of his household,Our pireman this in palitios .7166 TEUTONIC POLITY AND GOVERNMENTdepended upon the bounties of his favor, and constituted themselves a personal following of their chosen leader such as noRoman but a fawning client would have deigned to belong to.It was a polity of individualism which presented many strikingpoints of surprise to Roman observers. Individuals had undersuch a system a freedom of origination and a separateness ofunofficial personal weight which to the Roman were altogethersingular and in large part repugnant.-294. Temporary Coexistence of the Two Systems. For longafter the Teuton had established his dominion over the Romanized populations of Europe, Teutonic and Roman institutionslived side by side, each set persistent for its own people. TheGermans did not try to eradicate either the old population or theold laws of the Empire. They simply carried into the midst ofthe 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 the conquered lands, andestablished upon them such bodies of free landholders as they hadknown and built their polity upon in their old seats, either casting out those who already occupied them or reducing the occupiersto a servile condition; but much of the land they left untouched,to be occupied as before. Of course Teutonic customs, being thecustoms of the dominant race, more and more affected the olderRoman rights, even if only insensibly; and Roman principles ofright, belonging as they did to a much superior and much morehighly developed civilization, which the Teuton had already longreverenced, must have had quite as great a modifying effect uponthe Teutonic customs, which now, so to say, lay alongside ofthem. The Roman polity had entered into the whole habit ofthe older provincials and still retained, despite the disordersof the later days of the Empire, not a little of its old vigor andpotency. It had strongly affected the imaginations of the Germans when they had touched only its geographical borders, andit did not fail in a certain measure to dominate them even now,when it was at their feet. They made no attempt to stamp itout. They, on the contrary, tolerated, respected, imitated it.295. Personal ' Law. What looked like tolerance on thepart of the Teutons was in reality for the most part only a natural--DURING THE MIDDLE AGES. 167outcome of certain fixed conceptions of the race. The hosts whichhad poured into the Roman territories were much greater andmore various in their make-up than any the Teutonic peopleshad gathered in their communal life in the forests of Germany.They represented tribes united: kindred tribes, indeed, but stilltribes only very loosely confederated at home, if united thereunder any common government at all . These each had their ownlaw. Salian Frank had one law and custom, Ripuarian Frankanother; Frank had one right and practice, Burgundian another;and it was a principle everywhere observed among Teutons that,whether joined with others in a common enterprise or not, eachman must be judged and given his right by his own native law,according to the custom of his own people. Each had his ' personal ' privilege of blood and custom, must be adjudged by hisown ' personal ' law, the law of his own tribe or homeland. Soat any rate we have now come to phrase it; and we know that ingiving leave to the people of the Roman territories to keep theirlaw also, the conquerors were but extending to them a habit oftheir own, alike in thought and practice.296. Relative Influence of Roman and Teutonic Systems. - - Sofar as any general description of this mixture of Roman andTeutonic influences may be ventured, it may be said that theTeutonic had their greatest weight on the side of political organization, the Roman on the side of the development of privaterights. The Teutons, of course, tried to reproduce in their newsettlements the communal life peculiar to their own native institutions; they endeavored to organize their own power, accordingto the immemorial fashion of their own politics, on the basis ofa freehold tenure of the land and local self-administration, — afree division of the spoils on the principle of individual equalityamong the freemen of the tribes. They had stamped out theRoman state in the invaded territory; Roman public law they hadof course displaced, destroyed. It was Roman conceptions as toprivate relations that gradually modified their Teutonic system.That system rested, as regarded its political features hardlyless than at all other points, upon the relations of individualto individual, and as the example of the Roman practices, stillpreserved by the conquered populations about them, modified168 TEUTONIC POLITY AND GOVERNMENTthese relations of individual to individual, great changes wereby consequence inevitably wrought in political organization aswell. Such changes were, however, not in the direction of areproduction of Roman political method, but in the direction ofthe creation of that singular public polity which we designateas mediæval.297. Roman Influence upon Private Law. ― - The Roman influence thus told most directly and most powerfully through themedium of Roman private law. That law had developed toocomplete and perfect a system, and was much too suitable to thenew conditions in the midst of which they found themselves, tofail of influence amongst the new organizers. The Teutonicpeoples, leaders and followers alike, were prepared to admire andheed Roman civil arrangements . The leaders had in many casesa fancy for seeming successors to the Roman Emperor. Theywere prompt, when their power was once established, to draw thelaw which was to be ' personal ' to their Roman subjects into acrude but formal code, after the manner of Theodosius. KingGundobad, of the Burgundians, had such a code put together outof the older Roman codices, the writings of Paulus and Gaius,and the text-books and interpretations of the schools, so early asthe year 500 A.D. , five years after he had given his own people asimilar statement of their own law. The new code was the "LexRomana Burgundionum, " the Roman law of the Burgundians, ascontradistinguished from their own Burgundian law; and its provisions were chiefly for their conquered subjects, not for themselves. In the year 506 came the Lex Romana Visigothorum, theRoman code of the Visigoths, formulated at the command ofAlaric II. and generally known now as the Breviary of Alaric,the best and most influential of the barbarian codes of Romanlaw. It was practically the only source of Roman law known inthe south of France till the twelfth century. Germany and England drew their knowledge of that law from it until the eleventhcentury. In 511, or thereabouts (for the date is not certainlyascertained) , Theodoric the Great promulgated a like compilationof the Roman law for his Ostrogothie kingdom in Italy, a compilation which we know as the Edictum Theodorici. It was nosmall evidence of Roman influence that these greater rulersDURING THE MIDDLE AGES. 169should seek to give their subjects written law in both kinds; andthe fact that only priests were literate enough to undertake thework of codification meant that Roman principles would creep atunawares even into the statements of native law; for the polityand learning of the Church had its roots in the tradition and lawof Rome. ' Personal ' law, nevertheless, continued to prevail .Even the greatest statesmen, like Charles the Great, did not makeuse of their power to cut at the roots of local custom or personalright. Sometimes it was the plaintiff, sometimes the defendant,who established his right to his own personal law in a suit; butin every case custom reigned where it could.298. Roman Towns. - It was in the towns that the law ofRome had its strongholds. There it had a centred and livelyinfluence: and there it was long undisturbed by the conquerors.It took the Teuton a long time to learn how to live in a town,within limiting walls and amidst crowded houses. His nativehabit called him to a freer life: the pent-up town was too rigid,too conventional, too narrow a sphere for his restless energies .He at first contented himself, therefore, with the mere formalsubmission of the towns: it was long before he entered them tostay and to take part in their life . Meanwhile not only Romanprivate law, but also Roman municipal traditions, were preparingthe cities for the power and independence which they were toclaim and enjoy during the Middle Ages. They were to proveRome's most vital fragments. They nursed her law and reproduced her politics . Not Italy only, but the Rhone and Rhinecountries as well, were dotted over with these abiding places ofthe old influences which had once dominated the world: and fromthem those influences were eventually to issue forth again to freshtriumphs.299. The Fusion of the Two Systems . — Gradually there wasbrought about that fusion of German customs with Roman lawand conception which, after a long intermediate fermentation,was to produce the conditions of modern political life . Duringthe Middle Ages government gradually worked its way out fromthe individualism inherent in the habits of the Germanic racesback into an absolutism not unlike that of the Roman Empire.The intermediate stage was Feudalism.170 TEUTONIC POLITY AND GOVERNMENT-――300. Effects of Movements of Conquest upon Teutonic Institutions. Feudalism was preceded, however, by modifications inthe Teutonic system which were not the result of their contactwith Romanized peoples so much as the direct effects of conquest.301. ( 1 ) The New Kingship. The migratory conquests of theTeutons greatly emphasized for a time the principle of individualism, the principle of personal allegiance. They advanced totheir new seats not as separate marauding bands, but as emigrantnations . It was a movement of races, not of armies merely. Allthe 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 had not come, infact, with nothing but their old and simple organization . Theycame with established discipline and subordination, it wouldseem, with kingship already in some measure recognizedamongst them, ready to be made permanent. They were forced.to elevate the commander of the host to a new kingship. Asconfederated tribes in their old seats they had often chosen kings,who typified in their official dignity and sanctity the unity oftribal organization, who presided over the national councils, andwho by reason of their preferred position enjoyed a somewhatgreater state than their noble associates in the tribes. But theseearly kings, like the Greek kings of the Homeric songs, werescarcely more than patriarchal presidents, ' first among peers. 'The later kings, in Gaul, in England, and in Spain, -the kingsof the emigration, -on the other hand, ruled as well as reigned.They had first of all been the leaders who commanded the invading hosts, and who had met and routed the Roman forces whichsought to withstand the stalwart immigrants; and so long as conquests remained incomplete they continued in command to complete them. Conquest being achieved, their authority was stillnecessary 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 asort such as German politics had never known before. Great aswas the almost immediate transformation of commanders intokings, however, they were not yet kings such as later times wereDURING THE MIDDLE AGES . 171to see in France, after feudalism should have worked its perfectwork.302. (2) The Modified Land Tenure. The invading peoplesdoubtless at first took possession of the conquered territory by atenure not radically different from that by which they had heldtheir older home fields, except as it was modified by the fact thatthe conquered lands were already occupied by a native population,whom it was not their policy altogether to dispossess, and whosepresence even as serfs would necessarily affect the system of thenew masters. Those who were suffered to retain their holdingsonly exchanged a Roman overlordship for a German; but theyconstituted a new class of citizens in the German polity, andinevitably touched with Roman influences Teutonic customs oftenure.303. It was the circ*mstances of conquest, however, whichwere the chief causes of modification. The conquered territorywas naturally disposed of, in large part at least, by the leadersof conquest in accordance with military and strategic requirements. Such leaders, too, always get the lion's share of property.won by arms, as these lands had been; and, by their gifts, theirchief followers also are made specially rich in the new lands.Thus a new bond of personal connection is created, and conditionspregnant with profound social changes are established. It wasby means of such gifts and their influence that the leaders ofconquest raised up about them proprietors all but as powerful asthemselves, and so both cheated themselves of full kingship, androbbed society of all chance of harmonious unity. Power fellapart into fragments, -into a vast number of petty lordships,and the Feudal System was born.304. The Feudal System. But the complex thing which wecall the Feudal System was built up by no single or simple.process. Feudalism was itself a process: the process by whicharmed and emigrant tribes, settled upon conquered territories,were compacted into states, and prepared for a new politicalorder which should subdue the fierce individualism of the Teutonto a novel discipline of subordination and obedience. When thesystem had been thoroughly wrought out society resembled anarmy spread abroad and encamped, every freeman endowed with172 TEUTONIC POLITY AND GOVERNMENTa portion of land indeed, for his own tillage, but holding it by'military tenure, ' upon the condition that he would serve himof whom he held it, his immediate overlord and commander,whenever his call came to the field: that he would in all things,with a soldier's fealty, prove himself his faithful follower. Before this migration and conquest and settlement in new landsthe duty of each Teutonic freeman to come into the field whensummoned had been only a personal duty, which fell upon himwhen the summons came from the free council of his people: ithad had no connection with his title to his land . But under thenew order of things it had become his duty as a tenant, and it wasa duty which he owed, not to the host or to the leader with whomhe had voluntarily associated himself for some adventure of war,but to him of whom he held his land. And every freeman heldhis land thus of some one, save only the king himself. Militarysociety had taken root in the soil. The land supported an armyin which every man had a fixed place and function , failing whichhe was cut off from his land. A society that might have fallento pieces, had not the unbridled independence of the Teuton beenin some way checked and disciplined, was in this way heldloosely together by a series of personal dependencies based uponthe tenure of land. A connected series of greater and lesser landowners, the less dependent upon the greater, and all at leastnominally dependent upon the king, the centre and titular headof the hierarchy: such was the pattern of feudal society .305. Genesis of the System. It is possible to distinguish in ageneral way the several stages by which this singular order ofpolitical life came into existence. It was many centuries in themaking, and forces almost without number had their effect increating it in its several parts; but the main outlines of whattook place may be briefly stated. At first, no doubt, the Teutonic conquerors took possession of the land they had overrunlike the rough freemen they were: every man, great or small,got his share of the conquered territory, and the land was covered, as in their original homes, with a yeomanry slow to callany man master or submit to any authority not of their ownmaking. Inevitably, however, the shares of land that fell to thegreater leaders of the invading hosts of freemen very greatlyDURING THE MIDDLE AGES. 173exceeded those which fall to the ordinary soldier, and the king'sshare was greatest of all. Those to whom the greater grants fellcould not use them themselves, but they could perpetuate theirpersonal power and importance by making gifts ( benefices) out ofthem to their immediate followers, gifts revocable at will andgiven upon condition of continued allegiance and service. Thenew kings, moreover, bound their immediate servants and agentsto themselves by a strict oath of homage, which rendered themtheir men and vassals, and made of them as it were a permanentcomitatus. It was natural to reward such personal agents alsowith benefices and such a process in time bred an inevitableassociation of ideas. It came to be expected that vassals shouldreceive gifts of lands from their lords. It also came to be takenfor granted that those who received such gifts should renderhomage to those of whom they accepted them. And so land andvassalage went at last together; and every man who had landenough gave benefices out of it in order that he might havebounden vassals.

306. The service rendered by a vassal was only such serviceas a freeman might render and not be degraded. It had neverbeen degrading in the eyes of the Teutonic freeman to be of thecomitatus or personal following of a great leader. It did seem tohim degrading to pay money, to do any menial thing, to hold himself liable to any undefined or indefinable service but militaryservice degraded no man, nor anything that went naturally withit. Moreover, with the greater grants of land it became customary, as the new order of things developed, to grant also a certain wholesale right of jurisdiction and government, a long list of'Immunities ' or exemptions from higher authority in all mattersnot military, which in effect rendered a great estate a smallkingdom. Those who received the greater holdings received alsothe right to be supreme lords within them: to make their ownmilitary levies, to coin their own money, if they chose, to laytaxes, and to hold their own independent courts of justice .Although at first such holdings were theoretically revocable atthe will of the grantor, it naturally became more and more difficult to withdraw them. They inevitably became hereditary, andgreat families throve upon them.174 TEUTONIC POLITY AND GOVERNMENT307. The theory of the system was naturally opposed to theprinciple of inheritance. Each fief (as a feudal land gift wascalled) was held upon condition of military service, and no overlord or grantor could be sure that his vassal's son would be asfaithful or as capable as his father. Though the heir took theestate, therefore, it became the practice for him to pay a pricefor the privilege of succession. The principle of inheritance,when once it crept in, was necessarily the principle of primogeniture: the fief and the responsibilities that went with it couldnot be divided. To grant any portion of it to another, merelyfor his use and service, moreover, was forbidden, except for aprice paid. The fief must be kept a unit. Vassals, nevertheless,if they had land enough, made themselves masters in turn bygranting portions of their land to others, upon a military tenurelike their own, which rendered them more powerful without taking away from the obligations which they still owed to their ownoverlord and seigneur. The king was the nominal overlord ofall; and upon some he had direct claims of authority. For tosome he granted lands and immunities upon condition that theyshould act as his officers and representatives in the maintenanceof his authority amongst the vassals about them. But the veryoffices became hereditary; grants and sub- grants filled the countrywith a long series of overlords and tenants; and the king'sauthority grew very remote indeed . A man's first duty was tohis immediate overlord, and the king seemed very far away.The variety was completed by the granting of great territories tothe Church; and then the Church feudalized its lands. " Monasteries and bishoprics parted with their land to fighting nobles onthe tenure of military service [ to be rendered at the call of theking] , and received these persons as their vassals. ”308. It was a long time before the small freeholders, comefrom the loins of the original conquerors, were drawn into thenetwork of this hierarchy. Generation after generation theykept their independence and their separate ownership. But theprocess of feudalism was in the end too strong for them. Thegreater feudal lords grewto be too powerful to be safe neighbors;the feudal lawyers established it as a fundamental maxim of thelaw that there should be no land without its lord or seigneur;DURING THE MIDDLE AGES. 175and the poorer freemen, their ranks thinned by war, their properties too small to carry the burdens of independence, and theirpower to combine every year growing less, were fain to commend' themselves to the stronger owners near at hand: to giveup their lands, that is, into their keeping, and receive them backagain upon condition of vassalage. For the feudal overlord owedprotection and all that the word implied to his vassal. Withoutan overlord, a man's only redress could be got in the distantcourts of the king . He had no protector at hand but himself.He was outside the fixed order of society, and might any day becompelled to yield to force. And so, by the two processes ofbenefice and commendation the Feudal System was at last completed. wed.لات309. Local Differences in Feudal Development.There wasnot, of course, exactly the same method of development everywhere. In England, under the Saxons, and afterwards undertheir cousin Danes, the new polity seems to have been heldtogether more than elsewhere by that old cement of personalallegiance, the relations of leader and comitatus (secs. 290, 293);in France, and elsewhere on the continent, it was generated moredirectly by territorial connections independent of leadership andfollowing. In the one case men were apt to own land and possesspower because of their personal relations with the king; in theother, they were likely to stand in special personal relations tothe king because they owned land of which circ*mstances hadmade him titular overlord. Speaking generally, so as to includeboth France and England, it may be said that the benefice was oftwo kinds. The English benefices were most often estates grantedby the king to his personal following, to his comites, or to hislocal officers and agents, or to his less independent adherents, oncondition that they should hold themselves ever ready to renderhim full aid and service, and ever continue to adhere to himwith special fidelity. The French benefices were more generallyestates originally allodial (that is, held under no one, but by anindependent title) , which had been surrendered to the king, orto some other lord of the new hierarchy, to be received back againas his gift, for the sake of the mutual obligations of faith andsupport thus established . Nevertheless, it is not to be understood176 TEUTONIC POLITY AND GOVERNMENTthat benefices were exclusively of the one kind in England, andexclusively of the other kind in France. In France such estateswere very often direct gifts from the king or another superior;and in England they were as often surrendered freeholds asrewarding gifts . But each country had its predominant type ofthe benefice. Its common mark everywhere was that it was alanded estate: not an office or any other gift, but land held uponconditions of fealty to a superior.310. Commendation, on the other hand, at first at any rate,had no necessary connection with land . Its predominant featurewas a personal relationship which was rather that of master andman than that of landlord and tenant. It seems to have beenmade necessary by the creation of benefices. As great propertiesgrew up about them, as they became encompassed by the greatnetwork of connected estates woven out of the principle of thebenefice, small landholders found it necessary to avoid collisionwith the growing power of their princely neighbors by throwingthemselves into the arms of that power, by hastening to conformand make of their own holdings fiefs held of the lord of thegreatest contiguous manor; and as society fell thus into regulargradations of personal allegiance based upon property, the freeman who was without property and the native of the conqueredterritory who found himself suffered to have liberty but not tohold land by any such tenure as would enable him to become a‘beneficiary, ' were both left without a place in the new socialorder. Owing no definite service to the powerful persons aboutthem, they could claim no protection from them. They couldbe oppressed without remedy. They were driven , therefore, to'commend ' themselves to some lord who could afford them securitysuch security at least as the times permitted in return forfealty. This was ' commendation. ' It had, as I have said, nonecessary connection with the land, though the small owner aswell 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 hislord. ' Whether through benefice or through commendation, hemust fall into a definite place in the minutely assorted and classified society of feudalism.- -DURING THE MIDDLE AGES. 177311. Political Disintegration.-The state was thus disintegrated. It no longer acted as a whole, but in semi- independentparts. There was no longer any central authority which acteddirectly upon all individuals alike throughout a common territory. The king controlled directly, as he had the power, onlythe greater lords, who were in feudal theory his immediate vassals; other men, lower down in the series, could be reached fromabove only through their immediate masters. Authority filtereddown to the lower grades of society through the higher. Itwas a system, not of general obedience to a common law, butof personal obedience and subordination, founded upon landownership.312. Such, then, was the Feudal System. The king had noimmediate subjects except the greater barons and the vassals onhis own baronial estates, and the greater barons were obedientsubjects only when he had armed power sufficient to compel themto obey. Their vassals served the king only when they themselves did, and because they did, arming themselves for the king,as they would arm themselves against him, only as their lordscommanded. In brief, every baron was himself practicallysovereign of those holding under him. It was his decree thatsent them into the field; it was his power that defended themagainst others who would have oppressed or plundered them;and it was in his courts that justice was administered betweenthem . His strength and favor were their shield and title. Lawindeed grew up in the shape of custom; but the customs of onebarony differed from those of another. Except in so far as thepriest and the lawyer revived, in their advice to the magnateswho consulted them, the principles of the Roman law, stillalive to the studies even of that time, no uniformity of practiceprepared a unified system of law for the realm . It was anarrangement of governments within governments, a loosely confederated group of inharmonious petty kingdoms.313. The Feudal Conception of Sovereignty. The most notablefeature of feudalism is that in its system sovereignty has becomeidentified with ownership. The rights exercised by the baronswere in many cases nothing less than sovereign . Not only didthey decide property titles by the custom of their baronies and178 TEUTONIC POLITY AND GOVERNMENTprivate rights by laws determined in their own courts, they oftenalso coined money, they constantly levied tolls upon commerce,and they habitually made war when they pleased upon rival neighbors. They gathered about them, too, as the king gathered abouthimself, an immediate following of knights, whom they endowedwith lands as, so to say, barons of these lesser kingdoms, thegreater baronies. They commanded this retinue and exercisedthese sovereign powers, moreover, because of their relations asowners to the lands and tenantry of their domains. Sovereignty,in this petty parcelled kind, had become a private hereditarypossession, an item in family assets. Whoever should be ableto accumulate these territorial lordships into one really greatkingship would be owner, and, as owner, sovereign of the realm(sec. 323) .314. Feudalism and the Towns. The towns, meantime, stoodout with not a little success against feudalization. Many a townwas, indeed, dominated by the threatening pile of some baronialcastle, built over against it on the strategic vantage ground ofhill - summit or river peninsula; and all were constrained sooneror later to yield at least nominal overlordship to some feudalsuperior. But in the most important and powerful burgs enoughof the old municipal organization and independence was preserved to transmit to the times which witnessed the downfall offeudalism at least a vivid memory of the antique communal lifein 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 conception of political authoritywhich made of it, not a piece of private property to be barteredor sold, but the organized, the uttered will of a community.315. The Guilds. Still, within the cities there early sprangup a semi- feudal organization of society altogether their own.The importance of a town rested, not upon the ownership oflands, though many towns owned not a little land, but uponwealth gained by trade and industry . The internal social organization of the towns, therefore, tended more and more to turnupon the relations of labor. The famous guild system spranginto existence . Every handicraftsman, every trader, - like everylandowner and every freeman in the society outside the towns,DURING THE MIDDLE AGES. 179- had to find his place in a sharply differentiated social classification. Each occupation was controlled by its guild; and thatguild was a close corporation, admitting to membership onlywhom it chose. No one could enter save through the stringentlyguarded avenues of a limited and prescribed apprenticeship; andonce in, the apprentice was bound by the rules of his order.City government became representative of the authority of associated guilds. No one was a citizen who was not within one ofthe privileged associations. It is a reminiscence of this old orderof things that the building about which the city government ofLondon, as of many other antique towns, still centres is known.as the ' Guildhall. ' Even the militia of the towns were trainbands from the several guilds. The town, also, had created its' estates, ' its orders, as the country had done. This was its feudalsystem.316. The City Leagues. The greater trading towns near theBaltic and along the Rhine took advantage, during the thirteenthcentury, of the opportunities for independent action affordedthem by the piecemeal condition of authority under the feudalsystem to draw together into leagues, the better to pursue theirown objects; and for a very long time these leagues exercisedthe powers of great states, making war and peace, levying custom, concluding treaties and alliances. Their primary objectwas to cure those disorders of the times which made the roadsunsafe and interfered with their trade. The greatest of theseleagues were the Hansa, more commonly known in Englishwritings as the Hanseatic (Hansa means trade-guild), and theRhenish. The former centred about the great cities of Lübeckand Hamburg, and at one time included ninety of the townslying between the Baltic and the Elbe . The latter had Wormsand Mainz as its leaders, and at one time or another had connections with seventy towns, some of which stood as far away fromthe Rhine as Bremen and Nuremberg, though the arteries oftrade which it was meant to protect and keep open lay chieflyalong the Rhine valley. Many great princes were constrainedto connect themselves with these leagues in the heyday of theirpower. But trade alliances afforded too many occasions forjealous discords, and the growth of vast territorial monarchies.180 TEUTONIC POLITY AND GOVERNMENTtoo dangerous rivalries for the cities; and their leagues wereeventually broken up.317. Unifying Influences. Two unifying influences operatedmore or less potently during the Middle Ages to counteract thedisintegrating tendencies of the feudal system. These were theRoman Catholic Church and the Holy Roman Empire. Boththe Church and the Empire may be said to have been shadows ofimperial Rome. They were, by intention at least, the temporaland spiritual halves of the old empire of the Cæsars.318. (1) The Roman Catholic Church had, historically, a realconnection with the veritable dominion of Rome. Before theEmpire had been shattered by the onset of Teutons and Turks,Christianity had become its recognized official religion. ThePope in Rome represented one of the great primacies which hadearly grown up within the imperial Church: and this Church ofthe West, sundered from the Church of the East by irreconcilabledifferences of doctrine, showed an instinct for conquest whichseemed a direct heritage from the great pagan Rome of the oldentime. She mastered the new masters, the Teutons, and everywhere insinuated herself into the new political system whichdeveloped under their hand. Not only had every castle itschaplain, every city and country-side its priest, but the greaterecclesiastics themselves became feudal lords, masters of baronies,members alike of the civil and the religious hierarchies; andeven monasteries owned vast estates which were parcelled outupon a feudal tenure.319. But for all it was so interwoven with the feudal system,the Church retained its internal unity. The Pope's power didnot fall apart as did the king's. The priest acknowledged in allthings his allegiance to a universal kingdom, the spiritual kingdom of the Church of Rome. That Church recognized no boundaries, whether of baronies or of states, as limits to her ownspiritual sovereignty. Her authority extended, she claimed, overall kings of whatsoever grade, over all men of whatsoever rankor estate. The silent, unarmed forces of her influence, therefore,stood always on the side of an ideal unity. And they certainlyretarded disintegration . Her lesson was brotherhood and a common subjection; and that lesson, though often neglected, wasDURING THE MIDDLE AGES. 181never utterly lost sight of or forgotten. She kept alive, moreover, in her canon law, much of the civil law of Rome; her lawsat any rate were not diverse, but always the same; they reachedthe 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 thebaron-bishops: and whatever tended to unify law tended to unifypolitics . The ecclesiastical power was always on the side of anygood Catholic who proved himself capable of creating largerwholes of political authority, larger areas of civil unity. Byprecept and by example the Church was imperial.-320. (2) The Holy Roman Empire. Under the direct descendants of Chlodwig, the once vast dominions of the Franks fellasunder in several pieces; but Charles the Great (768-814)reunited and even extended them. He brought together underhis sword the territory now included in Germany, Switzerland,Hungary, Italy (all save the southernmost part) , France, andBelgium. And neither any Teuton nor any successor of Teutonsin western Europe ever gathered wide territories under his swaywithout dreaming of restoring the Roman Empire and himselfascending the throne of the Cæsars. From Charles the Great toNapoleon the spell of the Roman example has bound the imagination of every European conqueror. Charles had this ambitionclearly in his view, and circ*mstances peculiarly favored itsrealization. At the same time that he reached the height of hispower, Rome reached the acme of her discontent with what sheconsidered the heresies of the Eastern See, and the politicaldisorders at Constantinople gave the Roman pontiff pretext forcasting finally loose from all Eastern connections . The EmpressIrene deposed her son and usurped his throne; the Italiansdeclared that no woman could succeed to the titles of the Cæsars;and the Pope, arrogating to himself the prerogatives of kingmaker, crowned Charles the Great emperor of what later generations have known as the Holy Roman Empire, -'Holy ' becausecreated by the authority of mother Church.321. Here was a real ' Western Empire '; the first had beenonly an administrative half of the once undivided dominions ofthe emperors. Charles gave to his empire real vitality while182 TEUTONIC POLITY AND GOVERNMENThe lived; he, moreover, did what he could to hasten civil unityby promulgating anew the Visigothic version of the Roman law(sec. 297); and, although his empire broke up upon his death,an almost uninterrupted line of emperors, of one great feudalhouse or another, carried the titles of Rome through the MiddleAges to modern times, now and again backing them with realpower and always preserving for Germany a shadow at least ofunity in a time of real disintegration . Believing themselves,besides, in the early times at any rate, the lineal and legitimatesuccessors of the Cæsars, there was special reason why everyemperor should continue to build, so far as he had the opportunity, as Charles the Great had begun to build, on the law ofRome as a foundation, never designedly, as Charles the Balddeclared, enacting anything repugnant to it. All who from timeto time drew to the side of the imperial power in the conflicts ofdisordered ages also naturally affected the language and principles of the same system. The Empire was, therefore, not onlysometimes a silent witness and sometimes a great power for unification, but also always a steady influence on the side of a systemof law more advanced and unifying than that of feudalism.-322. Centralizing Forces: the Carolingians. — The rise of thefamily of Charles the Great into power illustrates the characterof the chief, indeed the only potent, centralizing forces of thefeudal time. Those forces lay in the ambition of great barons.Under the descendants of Chlodwig (the Merowingians) the territory of the Franks tended more and more to become permanentlydivided into two distinct parts. There were often, it is true,more parts than two: for it was the Frankish custom to divideeven a royal inheritance between all the sons of a deceased possessor. But, as it fell out in the long run, the most permanentdivision was that between Neustria (the western half) and Austrasia (the eastern) . In both of these kingdoms the Merowingianrulers soon degenerated into mere shadows of their imperative,dominant ancestors; and they were presently displaced by apowerful family of Austrasia, the family of Charles Martel.Charles Martel was Mayor of the Palace under the Austrasianbranch of the royal family. The office of Mayor of the Palace,though an office in the king's household, was, it would seem,DURING THE MIDDLE AGES. 183filled rather by dictation of the powerful lords of the kingdomthan by a free royal choice. It was filled, consequently, at anyrate in the times of which I am now speaking, by the leader ofthe great territorial chiefs, by the leader, that is, of the king'srivals in power. It had indeed become an hereditary office heldby the greatest of the baronial families. Charles Martel was asoldier of genius: he handed his office on to his son and hisgrandson: and they were men abler than he. His son, Pepin,with the sanction of the Pope, whom he had greatly served,became king of the Franks, in name as well as in reality, to thefinal ousting of the old line of do-nothing ' monarchs; andPepin's son was Charles the Great."323. The Capets: Concentration of Feudal Power. In thetenth century a similar change was wrought in France. Thedescendants of Charles Martel (Carolingians) had in their turnlost 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 thecounty of Paris, and afterwards with the duchy of France, as atonce a reward for their services in withstanding the incursionsof the Northmen and a stake in the threatened territory. Theduchy of France was only a comparatively small district aboutParis; but the vigor and capacity of the Capets, its dukes,speedily made it one of the most important feudal properties inthe whole of the great territory to which it was eventually togive its name. They became the chiefs of the baronial party,and when discontent with the Carling kings culminated it wasthey who became first ' kings of the barons, ' and finally kings ofFrance. Refusing to degenerate, as the Merowingian and Carolingian princes had degenerated, they continued to develop,generation after generation, a kingdom destined one day to rankwith the greatest of Europe; and that by a process planned as ifmeant to illustrate how best the feudal system might be used forits own destruction . By every means, - by war, by marriage, bycontract, by stratagem, by fraud, they drew all the greater feudalsovereignties into their own possession, until at length, theirduchy of France and the kingdom of France were indeed identical;until, having absorbed all scattered authorities, they had made--184 ROMAN LAW IN EUROPE.sovereignty, once possessed privately in sundered pieces, again awhole, but a whole which, by the strict logic of feudalism, wastheir private estate; until they almost literally possessed theland, and Louis XIV. could say with little exaggeration, ' L'étatc'est moi.' They had gathered the fragments of the feudal systeminto a single hand, and had made the state itself a feudal possession, a family estate.-324. The Piecing together of Austria and Prussia. Later stillthe same process was repeated in Prussia and in Austria. Byconquest, inheritance, forfeiture, marriage, contract, fraud,powerful feudal families pieced together those great kingdoms,to become in after times the bases of national organization. Inneither Prussia nor Austria did the process go so far as inFrance, though Austria, under the great house of Habsburg, became possessor of the imperial throne of the Holy Roman Empire,and Prussia, under the equally great house of Hohenzollern, hasbecome the central and dominant state of a new German Empire,which, through the healthful processes of modern national life,if not through the happily obsolete forces of absolutism, may yetbe as truly compact and unified a kingdom as any the world hasseen.THE DIFFUSION OF ROMAN LAW IN EUROPE.325. From the fifth to the twelfth centuries Roman lawinhered in the confused civil methods of the times for the mostpart as a mere unsystematized miscellany of rules applicable tothe descendants of the Roman provincials and observed largelywithin the towns. As the old distinctions between Roman andTeuton faded away, however, in the gradual mixture of the populations, these rules entered more and more into the general massof common custom. This process was in great part unconscious;there was no scientific selection in the development.326. The Barbaric Codes .- It was not from mere tradition,however, not simply from Roman law transmuted into unrecorded provincial custom, - that the knowledge of these centuriesconcerning the civil law of the Empire was derived, but fromfragments of the Theodosian legislation and of the writings ofthe jurists which had found embodiment in the Code of Alaric II.ROMAN LAW IN EUROPE. 185(sec. 297) , which is known to quotation as the Breviary (brevarium Alaricianum) . The West Goths themselves had not longremained contented with that compend of the law. Inthe seventhcentury there had been prepared in Spain a new Lex Visigothorumwhich contained a summary, not of Roman rules only, but ofGothic custom as well, and which, superseding the earlier compilation of Alaric, formed the basis for later codifications ofSpanish law. But the south of France, which had once ownedthe dominion of the Visigoth, retained the Code of Alaric; it wastransmitted thence to the north of France, to be handed on toGermany and England; and for all of these countries it continuedto be the chief, if not the only, source of Roman law until theeleventh or twelfth century. Charles the Great, as I have said,republished it, accepting it as the recognized manual of Romanlegal principle. Even Italy had had the continuity of her legaltradition broken by barbarian invasion, especially by the inroadof the raw Lombards, and had had to keep the fragments together as best she might amidst just such a confusion of ' personal ' laws as prevailed elsewhere in the once Roman world(sec. 295).-327. Custom and Written Law in France. -It was at this timethat the north and south of France came to be distinguished asrepectively the ' country of custom ' (pays de coutume) and the' country of written law ' (pays de droit écrit) . In the south,which had been thoroughly Romanized for centuries, there wasthe written law of Rome; in the north, which had never been sothoroughly Romanized, and which was now quite thoroughlyGermanized, there reigned in unrestrained confusion the Teutoniccustoms of the barbarian masters .This division corresponded closely with the division between the langued'oc and the langue d'oil. The districts of the langue d'oil ( of the Frankized Latin) were the country of custom; the districts of the langue d'oc,the country of written law.328. 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 oncemore cultivated by scientific lawyers. And not the Code ofAlaric, but the vastly more perfect Corpus Juris Civilis, as the186 ROMAN LAW IN EUROPE.twelfth century called it, Justinian's ( or, rather, Trebonian's)great compilation, which Germanized Europe had hitherto usedscarcely at all, ' was the basis of the revived study. The newcultivation of the law began, naturally enough, in the Italiancities . There the movements of trade were quick and various;and there a various population was not only mixed of many elements but fused and united, by intermarriage no less than byclose social, political, and commercial intercourse . For thequick, informal, multifarious operations of trade Teutonic lawhad made no more suitable provision than had the jus civile inthe old days at Rome: a jus gentium was needed such as theRoman jurisprudence stood ready to supply. ' Personal ' lawcould not obtain where elements were so fused and united bycommon undertakings and interests as well as by an actual mixture of bloods . " In Justinian's Digest the Italian jurists of thetwelfth century found a system of law that was adequate to theneeds of the new commerce; " and great schools sprang promptlyinto existence for its study and propagation. The first of thesewas also to be the most famous, the University of Bologna, established late in the eleventh century, and destined to become thechief seat of the study of the Roman code. Pisa and other Italiancities then took up the new pursuit. Presently the interesthad spread to France and to Spain, going in France first toMontpellier and Paris, afterwards to Bourges, Orléans, and Toulouse, the old capital of the West Goths; and in Spain creating(A.D. 1254) the notable University of Salamanca. From Spainand France, Holland caught the fashion, giving to Europe in theseventeenth century the illustrious jurist Hugo Grotius, whocreated out of the great principles of equity discoverable inRoman Law the elevated and influential science of InternationalLaw (sec. 1457) . In England, too, the same studies began tobe affected almost immediately after the rise of the school ofBologna, and are said to have been regularly pursued there downto the sixteenth century.329. This sudden spread and luxuriance of the study is impressive evidence of a common preparation and need for it. The1 The Digest and the Codex were in some measure made use of by thecanonists throughout the Dark Ages.ROMAN LAW IN EUROPE. 187cultivation of the Roman law in the schools may in someinstances indicate a clerical influence; but the study was toogeneral and too spontaneous to be attributable mainly to this orto any other single cause.66330. Influence of the Schools. The Italian schools of lawalmost immediately drew to them students from all parts ofEurope, and, in time, " sent out masters and doctors by the hundreds. " Priests and laymen alike got their training in them.Returning to their homes, the civil doctors crowded the hereditary expounders of local usage off the judicial bench. Under thefostering care of kings and princes, " interested to see a centralizedpower built up by their courts, there grew up everywhere bodiesof accomplished lawyers and a ' learned judiciary '; and " Europeobtained a common commercial law in the Corpus Juris Civilis,as it had obtained a common family law in the Corpus JurisCanonici, " the developed jurisprudence of the Church.331. The materials upon which teachers and students alike worked inthe schools were not the pure sources of the Roman law, but a mixture ofRoman, canonical, and Lombard law which showed the influence of anearlier cultivation of jurisprudence by learned men among the Lombardsin their school at Pavia. Lues.332. Influence of the Church. -The Roman Church had earlyeffected a conquest of the Teutonic invaders, and the new mastersof Europe had left its organization intact. " It cared for education and dispensed charity . It drew into its domain the entirecontrol of the family relations . It undertook, partly in its owninterest, to enforce testaments, " or wills, after the Roman manner. The Teutonic peoples, held together by ties of consanguinityand accustomed to communal rather than to individual ownershipin matters of property, had not admitted to their law conceptionsof free contract, individual ownership, and succession by willsuch as the developed jurisprudence of Rome had given currencyto. But the will, the contract, and the principle of separateownership were indispensable to the Church if she was to buildup her properties by the gifts and devises of pious persons towhom her priests were permitted to minister. "They were alsocharacteristic and essential elements in the civilization amidwhich the Church had been reared to maturity. " (Maine. ) The188 ROMAN LAW IN EUROPE.whole weight of the Church's power was thrown, therefore, infavor of the adoption of these important doctrines and practicesout of the law of Rome. And she was able to make her greatinfluence tell in all the matters to which she gave her attentionbecause she " had brought over from the Roman into the mediævalworld a well- developed governmental organization . She addedto this a complete set of courts, with appeal to Rome. " (Smith. )And her priests possessed the learning of the time; were indispensable as counsellors and administrators, no less than as clerks;were the compilers of codes, whether of Roman or of Teutonic.rules; had in all things the ascendency of training and knowledge.-333. The currency of the Latin language had also its influence inspreading abroad the forces which were to bring in the Roman law. Itwas everywhere in Europe the speech of commerce, of learning, and ofpublic business: the common repository and vehicle of knowledge and ofthe forms of important transactions.334. Entrance of Roman Lawinto the Legal Systems of Europe.Of course this widespread interest in the study of Roman lawwas not all speculative. The study and the practice of the lawacted and reacted on one another. Its rules were more and moreconsciously and skilfully fitted into the growing law of the kingdoms which were emerging from the feudal system because it wasbeing adequately mastered and systematized at the universities;and it was being mastered and systematized at the universities.because it was being more and more called for in the actual administration of justice . Its use and its cultivation went hand inhand.335. In France . - Roman law came into use with much thesame pace with which the Capets advanced to complete power,and triumphed with the perfecting of the centralization whichthey effected. Louis IX. ordered the Roman law translated intoFrench; established the right of the crown to hear appeals fromthe feudal courts in all cases; sent royal judges on circuit tohear complaints of infringed rights; and erected at Paris thefamous Parliament of Paris as the supreme tribunal of the realm.The feudal lords of France were the nominal members of thiscourt, but trained jurists (legistes) , appointed as experts to assistthem, became in practice its real members. Schooled in theROMAN LAW IN EUROPE. 189Roman law, they admitted its principles into all their decisions;and they gave to the king from the same source the maxim whichdeclared the will of the prince to be law. As the king's jurisdiction grew, the principles of Roman jurisprudence gained widerand wider acceptance and supremacy.336. The Method by which Roman law crept in was always thesame: it was introduced, not by legislation , but by adjudication,by the decision of cases in the royal courts . It was here that thelearning of the trained lawyers told, and the desire of the kingto see the single power of the throne magnified. The royalcourts, as they were developed in the provinces, applied localcustom in their decisions, for the most part, only upon very conclusive proof of its existence and its definiteness, and in theabsence of definite and conclusive proof of a contrary customresorted always to the Roman as to a ' common ' law. The lawgrew thus, and was made consistent, by judgment, by writtenopinion, by royal ordinance; and a French jurisprudence beganto make its appearance, working upon the various materialswhich were to enter into the final law of the land.337. And presently the Roman law came, so to say, fromout the nation to meet the royal system. Very early in Berri,Bourbonnais, and Auvergne, the central districts of France, thelaw of Rome had been consciously adopted as the common law ofthe land, to be appealed to in the absence of proof of any specialcustom or enactment. Subsequently it came to be considered asin some sort the supplementary common law of all France, for,though never established as such in the north of France, it waseven there appealed to in doubtful cases as ' written reason. 'The Code Napoléon, the last great codification of French law, hasbeen described as in great part a republication of the laws ofJustinian as those laws have been modified and fitted to new circ*mstances by the processes of French history. The statementought, however, to be taken with an important qualification. Avery great deal of Germanic law found permanent place amongaccepted legal principles in France, though Roman law contributed the chief formative forces, the forces of fusion and system.338. Local Custom in France. It is important to observethat the unifying, harmonizing influences exercised by the grow--190 ROMAN LAW IN EUROPE.ing royal jurisdiction were, for a long time at any rate, influences which affected procedure much more than the internal,essential elements of legal principle . The differentiation betweendistrict and district which had taken place in the process of feudalization had been of the sharpest, most decided character.When the Capets first assumed the titles of kingship there wereduchies as great as France. The work of extending and consolidating the kingdom consumed several centuries; and, meanwhile,each petty sovereignty was developing its own law apart. Muchof the territory which afterwards became part of France was,during the same period, moreover, in foreign hands, held byEngland or Burgundy. The kingdom as finally consolidated ,therefore, presented a very great variety of deeply rooted andpersistent local laws and customs. Normandy had one set ofcustoms, Berri a very different set, Anjou a third, Brittany afourth; and so throughout the once piecemeal country.339. Unifying Influence of the Royal Prerogative. — The influence of the royal jurisdiction upon this heterogeneous mass ofdiffering laws was, as I have said, at first rather to unify andsystematize the procedure of the local courts, which administeredlocal law, than to effect changes in the local customs themselves.Since appeals to the king's justice were possible in all cases, theformal method of appeal tended to become the same everywhere;and the methods of the king's courts in dealing with appealedcases more and more tended to set the fashion of procedurethroughout the loose system, though the royal judges continuedto decide appealed cases according to the law of the district fromwhich they were brought up.340. By degrees, however, new ideas and principles, as wellas new modes of procedure and appeal, were infused into localjustice. The law and the legal practice of each district alikemore and more distinctly and consciously approximated to themodels of organization and to the standards of decision obtainingin the king's courts. The territorial tribunals accepted the services of lawyers trained in Roman principles and inclined towardsregal precedents; and the local law officers of the crown were ofcourse everywhere ready to effect whatever was within reach oftheir functions or example in the way of bringing local customROMAN LAW IN EUROPE. 191around to the rules of universal acceptance to be found in Romanlaw and regal decision . Independently, moreover, of the influence of the crown, the Roman law was entering the local courts,becoming common law in Auvergne and Bourbonnais, as we haveseen, before it became the common law of France.341. Through the Parliament of Paris the Roman law had, soto say, a double door of entrance. The jurisdiction of that courtwas both spiritual and temporal: so that both the Code of Justinian and the canons of the Church contributed their versionsof Roman judicial practice and tradition to its findings .342. In the Code Napoléon, the final codification of French lawas it had emerged from the long processes of the Middle Ages,we find a statement of the law which was in fact made possiblebythe earlier labors of great French jurists, like the accomplishedPothier. In matters of inheritance, in the rules which governthe family relations, and in the law of marriage the customs ofFrance find their place, though as if they had been digested andformed anew under the influence of the Roman jurisprudence.In the law of contract, the law of property, the rules of judicialtrial, and all questions of the legal burdens which may be placedupon land, Roman law has had a chief place of influence. Everywhere, however, there are traces and elements of fusion. It is alaw written over with history and with the labors of trainedstudents of the law.343. In Germany there was no central power such as that whichserved to build together the legal systems of France and of England. The feudal system had done its work more thoroughly.there than elsewhere: and Germany emerged from the MiddleAges, not a nation, but a congeries of petty states. There wasa form of union among them, indeed, in the Holy Roman Empire,and throughout all the changes of German history the imperialinfluence had sought to shelter and to foster Roman law, the lawof empire and of princely rule. The imperial courts, the imperial lawyers, the imperial party in Germany, were always administrators or advocates of its principles; and when the house ofHabsburg came to the imperial throne, as when other powerfulemperors had reigned, there was no small potency in these influences. But the final reception of the Roman law was postponed192 ROMAN LAW IN EUROPE.in Germany until the sixteenth century, and was due to otherforces than those associated with the royal power.344. Reason for Germany's Reception of Roman Law. - Thereception of the Roman law into the law of Germany was due tovarious circ*mstances and influences, but not fo the poverty orimperfections of German law. German law was both rich and fullin its development: at some points it may fairly be said to havebeen superior to Roman law in its suitability to the needs andconditions of the time. Neither was the law of Rome receivedas naturally supplementary to German law and of a sort to effectit* further and more complete development; for there were nota few radical oppositions of principle between the two systems .For example, Roman law was based upon the recognition of theentire equality of persons, while German law ranked them inorders, with differing values and privileges; Roman law allowedthe free alienation of land and set up the principle of absoluteindividual ownership, while German law had at its root ideas ofcommunal and family ownership and put many restrictions uponalienation. Moreover, there could be no doubt that the law offeudal relationships had had as complete a development in Germany as anywhere else in the European world; and yet, alongwith the Roman law, which she took from the schools and commentators of Italy, Germany took also the Italian Feudal Law,to which the Italian students had given a similar systematicformulation.345. The Roman law was received in Germany because of thefeebleness and disintegration of the judicial system there; becausethe old popular courts, which administered only an unchangingcustom and tradition, inevitably decayed with the growth ofsociety; because single judges trained to the law were substituted,and the only law in which one could be trained was the Romanlaw of the Italian schools. " The popular court, " as ProfessorSohm says, "is the natural enemy of Jurisprudence. " "TheRoman law was received, " he declares, " not because it wasRoman, not because it was the better, law, but because it wasscientific law, " -not because of its contents, but because of itsform and exactitude . "Because we needed the foreign jurisprudence, we received the foreign law, " The introduction tookROMAN LAW IN EUROPE. 193place, not because princes controlled the courts, but becauselitigants insisted. They were dissatisfied with the administration of justice in the unlearned courts. They wanted a court,a judge, learned in the law. "The single judge must be a learnedjudge, by the same necessity by which the old popular court wasan unlearned court. "346. Throughout the Middle Ages the popular courts remainedthe only vital courts in Germany; when they first began to giveway their place was taken by courts that were no better, beingmade up of some unlearned agent of the feudal lord of the district, assisted by assessors as little trained for the function ashe. In France and in England a native jurisprudence grew up,because the royal power was able to set up a system of courts,to put trained officers into them, and to draw differing local customs to a common administration and development. But therewas no power capable of rendering the like service in Germanythe decay of the popular courts did not mean the substitution.of an indigenous learning . The single judges finally set up therewere learned, if trained at all to the law, in the Italian jurisprudence. Germans had long studied in Italy; and the Roman lawof the Italian schools was taught from their foundation in theGerman universities . All theological students were obliged tostudy the Roman and canonical law as part of their regular professional training; for it formed the basis of the administrationof the spiritual courts, which had so long stood alongside thecourts of ordinary law in every part of Europe. "The occurrencewhich we call the reception of foreign law, " says Professor Sohm,"consisted entirely in this , that the jurisprudence which alreadyruled in the spiritual courts took possession also of the civilcourts. "347. The law that was received was not the Corpus Juris of Justinian, but the common law of Italy, founded upon the Roman,the canon, and the Lombard law. "The Corpus Juris was terraincognita to the German jurists of the period of the reception. "They brought in, "not the Pandects, but the Usus modernusPandectarum of the Italian lawyers. " It was the great Savigny ofour own century who first carried German legal study back to thepure sources of the Roman law, and great was the confusion pro-194 ROMAN LAW IN EUROPE.duced by the substitution. The new law was not, of course, accepted whole and in bulk. It entered, in Germany as elsewhere,as ' subsidiary ' law, not as the native law of the land. It nevertheless received everywhere a decided preference in the courts.While accepting Roman legal rules as prima facie conclusive ofthe rights of a suitor, they imposed upon those who allegedestablished local usage in opposition to it the necessity of furnishing conclusive proof of the existence and acceptance of suchusage as law. Roman law, in brief, they accepted on its ownauthority, Germanic custom only on the authority of indubitablecirc*mstantial testimony.348. The outcome was that, speaking most generally, theRoman law prevailed in the field of procedure, in the field ofcriminal law, in the field of contract, and in the field of the lawof inheritance; while German law persisted in respect of thelaw of real property, in respect of family law, and wherever lawwas to be drawn on to the recognition of new relationships,like those of association and incorporation, in a changingsociety.349. In England, a strong native jurisprudence kept the foreign law out. Always held off from the rest of Europe by thesea, a separate system of law was made possible for her, no lessthan an independent government. The royal power was able tomake of the favored island a compact kingdom: and men of themasterful Plantagenet blood gave it a centralized administrationof justice such as no other European state was able to obtainwhile yet it was in its early formative stage of growth. Englishjudges put together a consistent English law, and there was noneed for a foreign jurisprudence.350. And yet the Roman law was not wholly excluded . TheRomans had governed Britain four hundred years, bending theprovince to the purposes of their administration with their usualthoroughness . We know that Papinian, the greatest of Rome'sjurists, himself administered the law in Britain, and we haveevery reason to believe that its promulgation there was thorough,its rootage full four hundred years deep. It can hardly be thatthe Saxons wholly eradicated it. We know that many Romanmunicipalities on the island survived all conquests: and we knowROMAN LAW IN EUROPE. 195that the priests of the Church of Rome early took back to Englished Britain conceptions steeped in Roman jurisprudence. Bedetestifies that the Saxon laws were codified under the auspices ofthe clergy and that Roman codification was the model. We haveseen that Roman law was studied in England almost as early asin mediæval Italy herself, the study being continued withoutserious break for more than three centuries (sec. 328); and theworks of the earliest English legal text- writers, such as Bracton,Glanvil, and the author of the Fleta, abound in tokens of a closefamiliarity with the laws of the imperial codes, are full of theirvery phraseology indeed. The so- called laws of Henry I. aresaid by competent legal scholars to consist, to the extent of fullyone-halftheir content, of precepts borrowed from Rome. Throughthe ecclesiastical courts, which down to the middle of the presentcentury administered upon all estates in England, and upon alltrusts; through the Court of Chancery, whence has issued thesystem of English equity, and which was presided over in itsformative period by the great , ecclesiastics who were the firstchancellors, afterwards by great lawyers, such as Lord Hardwickeand Lord Thurlow, deeply versed in the civil law of Rome andapt to draw suggestion and even concrete rule from it; andthrough the Admiralty Courts, always controlled by the rules ofthe Civil Law, England has drawn directly or indirectly fromRoman sources, in supplement of her own indigenous Germaniccustoms; and not many portions of her law have escaped beingin some degree marked by the same influences that have mouldedthe law of the rest of Europe. Her borrowings , nevertheless,have been of form and method rather than of substance, and thegreat bulk of her law is her own.REPRESENTATIVE AUTHORITIES.Adams, George B., " Civilization during the Middle Ages, " New York,1894.Bluntschli, J. C., " Allgemeine Staatslehre." Book I., Chapters IV. ,Stuttgart, 1875. There is an American translation of this work.Brunner, H., “ Deutsche Rechtsgeschichte. " 2 vols. , 1887-1892 .Bryce, " The Holy Roman Empire. " New York, 1886.VI.196 ROMAN LAW IN EUROPE.Church, R. W., " The Beginnings of the Middle Ages. " ( Series ofEpochs ofModern History. )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.Duruy, Victor, " Histoire du Moyen Âge, depuis la chute de l'Empired'Occident jusqu'au milieu du XVe Siècle. " 1 vol . Paris. 8th ed. ,1875. Trans. by G. B. Adams, New York, 1891 .Emerton, E., " Introduction to the Study of the Middle Ages," Boston,1889, and " Mediæval Europe, " Boston, 1894.Freeman, E. A., " Historical Essays. " Series I. Freytag, G., “ Bilder aus der Deutschen Vergangenheit ": "Aus demMittelalter, " 1873. " Vom Mittelalter zur Neuzeit, " 1867.Gibbon, E., “ Decline and Fall of the Roman Empire. " Smith's ed. NewYork, 1880.Guizot, F. , "Lectures on the History of Civilization in France and inEurope. "Hallam, H., “ View of the State of Europe during the Middle Ages,"especially Chapter II., which contains what is possibly the best briefaccount in English of the Feudal System.Heeren, A. H. L., " Manual of the History of the Political System ofEurope and Its Colonies." Oxford, 1834.Kingsley, Chas. , " The Roman and the Teuton."Macaulay, T. B. , Essay on " Ranke's History of the Popes. "Milman, H. H., “ History of Latin Christianity." 8 vols . New York.Myers, P. V. G., " Outline of Mediæval and Modern History," Boston,1886.Oman, Ch. , " Europe, 476-918, " New York and London, 1893.Ranke, L. von, " History of the Popes."Schroeder, R., " Lehrbuch der deutschen Rechtsgeschichte. " 2nd. ed. ,1891.Sheppard, J. G., " The Fall of Rome and the Rise of the New Nationalities." 1 vol. London and New York, 1861 .Concerning the introduction of Roman law into modern European legalsystems, see, besides authorities mentioned at end of Chapter IV. , ante, —Jenks, Edward, " Law and Politics in the Middle Ages. " N.Y. , 1898.Sohm, Rudolf, “ Die deutsche Rechtsentwickelung und die Codificationsfrage, ” in Grünhut's Zeitschrift für das Privat und Oeffentliche Rechtder Gegenwart, I. , 245–280.Stein, Lorenz, " Das Wesen der Reception und die Reception desgriechischen Rechts im römischen Recht,” in Grünhut, I. 722 ff.ROMAN LAW IN EUROPE. 197Stephen, Sir James, " Lectures on the History of France, " especially lectures I.-V., inclusive.Tomkins, F. J., and Jencken, H. D., " Modern Roman Law. ”Waitz, Georg, " Deutsche Verfassungsgeschichte, " 8 vols. The classicalwork on early Germanic institutions and the development of theGerman constitution .VI.THE GOVERNMENT OF FRANCE.351. The Growth of the French Monarchy. - The full politicalsignificance of the history of France can be appreciated only bythose who keep in mind the chief phenomena of the wideningmonarchy, the successive steps by which the Dukes of France,the capable Capets, extended their power and the name of theirduchy over the whole of the great territory which was to be inherited by Louis XIV. The course of French history is fromcomplex to simple. In the days of Hugh Capet ' France ' was thename of only a single duchy centering in Paris, of but one of agreat number of feudal lordships equally great, equally vigorous,equally wedded to independence. The duchy's advantage lay inthe fact that her dukes had been chosen for leadership and thatthey were capable of leadership, rather than in the possessionof preponderant strength or superior resources. To the west ofher lay the solid mass of Normandy; to the north lay the territories of the Counts of Flanders and Vermandois, and to the eastthe territory of the Count of Champagne; southward lay the greatduchies of Burgundy and Aquitaine, beyond them the lands ofToulouse; alongside of Normandy, Anjou and Brittany stretchedtheir independent length to the west. And these were only thegreater feudal sovereignties. Within and about them lay otherdistricts not a few with masters ready to assert privileges withoutnumber in contradiction of all central rule. The early historyof France is the history of a duchy striving to become a kingdom.'France ' holds a good strategic position, and fortune has madeher dukes titular kings over their feudal neighbors, but still sheis in reality only one among many duchies.352. By slow and steady steps, nevertheless, a work of unifica198THE GOVERNMENT OF FRANCE. 199tion is wrought out by the Capets. In every direction they stretchout from their central duchy of France their hand of power andof intrigue and draw the pieces of feudalized Neustria togetherinto a compact mass. The work is thoroughly done, moreover, atalmost every stage. Out of populations as heterogeneous as any inEurope they construct a nation singularly hom*ogeneous; out offeudal lordships as strong, as numerous, as heady, and as stifflyseparate as any other equal territory could show, they constructa single kingdom more centralized and compacted than any otherin Europe. The processes of these remarkable achievements give.to the history of the French monarchy its distinctive politicalsignificance: the means which the Capets devised for solidifying,and, after its solidification, for enlarging and effectuating theirpower, furnish some of the most suggestive illustrative materialanywhere to be found for the general history of government.353. Perfection of the Feudal System in France. The feudalsystem worked its most perfect work in France. The opportunities of feudalism there were great. Neustria, the western, Gallic half of the great Frankish kingdom, was early separated fromAustrasia, the eastern, Germanic half (secs. 322, 323) , and itsseparateness proved the cause of its disintegration . Burgundy,Brittany, and Aquitaine sprang to the possession of uncheckedindependent power round about it; the Normans thrust theirhuge wedge of territory into it; battle after battle between thosewho contended for the possession of the pieces of the great empire which Charles the Great had swept together first decimatedand finally quite annihilated the sturdy class of Frankish freemenwhose liberties had stood in the way of local feudal absolutism;privilege grew in the hands of feudal lords while prerogativedeclined in the hands of those who sought to be kings; thosewho possessed privilege built for themselves impregnable castlesbehind whose walls they could securely retain it: -and feudalism had its heyday in France.354. It is reckoned that in Hugh Capet's day the " free and noble population " of the country out of which modern France was to be madenumbered " about a million of souls, living on and taking their namesfrom about seventy thousand separate fiefs or properties: of these fiefsabout three thousand carried titles with them. Of these again, no less200 THE GOVERNMENT OF FRANCE.than a hundred, -some reckon as many as a hundred --- were and fifty,sovereign states, greater or smaller, whose lords could coin money, levytaxes, make laws, administer their own justice. " Of these one hundred,however, only some eight or ten were really powerful states.355. Materials of the Monarchy. Such were the materialsout of which the Capets had to build up their monarchy. It wastheir task to undo the work of feudalism. Nor were these theonly materials that they had to handle in the difficult undertaking. There were other privileges besides those of the feudalbarons which it was necessary to destroy or subordinate beforethey could see their power compact and undisputed .356. Local Self-government. — Notwithstanding the fact thatin most districts of the divided territory the power that ruledhim was brought close to every man's door in the person of hisfeudal lord and master, there were many corners of the systemwhich sheltered vigorous local self- government. The period ofthe greatest vitality of the feudal system was, indeed, the onlyperiod of effectual local self-government that France has ever yetknown. The eventual supremacy of the Crown, which snatchedtheir power from the barons, also destroyed local self-government,which the barons had in many cases suffered to grow; and neitherthe Revolution nor any of the governments which have succeededthe Revolution has yet restored it to complete life . Local liberties were taking form and acquiring vigor during the very periodin which the monarchical power was making its way towardssupremacy; and it was by these local liberties that the kings.found themselves faced when their initial struggle with feudalism was over. It was their final task to destroy them by perfecting centralized administrative organization.357. Rural Communes. While feudalism was in its creativeperiod, while the forces were at work, that is, which were shaping the relations of classes and of authorities to each other, it wasnot uncommon for feudal lords to grant charters to the ruralcommunes lying within their demesnes. In and after the twelfthcentury these charters became very numerous. They permitteda separate organic structure to the communes, regulated the admission of persons to communal privileges, laid down rules for1 G. W. Kitchin, History of France, Vol. I. , p. 186 .THE GOVERNMENT OF FRANCE. 201the administration of property in the commune, set forth feudalrights and duties, prescribed the corvées, etc. "Everywhere ageneral assembly of the inhabitants directly regulated affairs, "delegating executive functions to communal officers, who actedseparately, each in the function with which he was speciallycharged. These officers convoked the general assembly of thepeople for every new decision that it became necessary to takewith reference to communal affairs . The principal affairs withinthe jurisdiction of the assembly were, "the administration ofcommunal property, which in that period was very important,police, and the collection of the taxes both royal and local. ” 11358. In the administration of justice, also, the Middle Ageswitnessed in France not a few features of popular privilege. Thepeasant as well as the nobleman had the right to be tried by hispeers, - by persons of his own origin and station . In the courtsof the feudal barons the vassals were present to act as judges,much as the freemen were present in the English county courts(secs . 836, 942). Th.359. Liberties of Towns: the Roman Municipalities. — Theprivileges of self- direction granted to the rural communes, however, were privileges granted, so to say, inside vassalage: themembers of the communes were not freed from their constantfeudal duties . Many towns, on the contrary, acquired and maintained a substantial independence. When the earliest Frankishkings failed in their efforts to establish a power in Gaul as strongand as whole as the Roman power had been, and the Frankishdominion fell apart into fragments whose only connection was anominal subordination to a central throne, there were othersbesides the great landowners to avail themselves of the opportunity to set up independent sovereign powers of their own. TheFranks, as we have seen, had found many Roman cities in Gaul,and, not at first taking kindly to town life, had simply conqueredthem and then let them be (sec. 298) . In these, consequently,the old Roman organization had endured, freed from Roman dictation . The Franks who entered them later took character fromthem almost as much as they gave character to them. Germanicprinciples of moot- government and individual freedom entered,1 H. de Ferron, Institutions Municipales et Provinciales Comparées, p. 3.202 THE GOVERNMENT OF FRANCE.to a certain extent, like a new life- blood into the Roman forms,and compact, spirited, aggressive, disciplined communities wereformed which were quick to lay hold of large privileges of selfrule, and even to assume semi-baronial control of the lands lyingabout them, in the days when independent powers were to behad for the seizing. The organization which Roman influenceshad bequeathed to these towns was oligarchical, aristocratic: thegoverning power rested with close corporations, with councils(curia) which were coöptative, filling their own vacancies. Butforces presently appeared in them which worked effectually fordemocracy. The Christian Church, as well as the barbarianTeuton, took possession of Gaul: the greater towns became theseats of bishops; and the bishops threw their weight on the sideof the commons against both the counts outside the towns and theoligarchs inside. Only so could the magnates of the Church establish themselves in real power. In most cases the ecclesiasticsand their restless allies, the commons, won in the contest forsupremacy, and democracy was established .The Italian towns, with their ' consuls ' and their other imitations of theold Roman republican constitution, are perhaps the best examples of thisrenaissance of democracy.-360. The Non-Roman Municipalities.-These Roman towns,however, were to be found for the most part only in the southand along the Rhine. North of the Loire, as the Franks tookgradually to city life, there sprang up other towns, of Germanicorigin and character; and these were not slow to agitate for grantsof special privileges from their baronial masters. In very largenumbers they obtained charters, charters, however, which wereto give them a connection with the feudal system about themwhich the towns of the south, antedating feudalism, did not forsome time possess . They were given substantial privileges ofself- government, but they were not severed from baronial control.They conducted their affairs, on the contrary, under chartersin which the relative (customary) rights of both seigneur andburgher were definitely ascertained, by which seigneurial authority as well as burgher privilege was fully recognized, and underwhich, moreover, the authority of the seigneur was actively ex-THE GOVERNMENT OF FRANCE. 203ercised through the instrumentality of a Prévot, the lord's servantand representative in city affairs .--361. This, the more secure form of municipal self- government,because the form which was most naturally integrated with thepolitical system about it, a form, moreover, which very naturally connected itself, mediately, with the supreme seigneurialauthority of the king, — became in course of time the prevalent,indeed the almost universal, type in France. The ' prévotal 'town is the normal town down to the end of the fifteenth century.362. Not all of this development was accomplished peacefullyor by the complaisance of the barons . Many cities were drivento defend their privileges against the baronage by force ofarms; some, unable to stand out unaided against feudal aggressions, were preserved from discomfiture only by succor from theking, whose interest it served to use the power of the townsmento check the insolent might of the feudal lords; others, again,were repeatedly constrained to buy in hard cash from neighborbarons a grudging tolerance for their modest immunities. Thekings profited very shrewdly by the liberties of the towns, drawingthe townspeople very closely about themselves in the strugglesof royal prerogative against baronial privilege. As supremelords in France, they assumed to make special grants of municipal citizenship: they made frequent gifts of bourgeoisie to disaffected vassals of the barons, gifts so frequently made, indeed,that there grew up a special class of royal townsmen, a specialbourgeoisie du roi.- -- 363. The Towns and the Crusades. Not the least importantelement in the growth of separate town privileges was the influence ofthe crusades upon the power of the nobility. When the full fervor ofcrusading was upon France, her feudal nobility were ready to give upanything at home if by giving it up they might be enabled to go to theholy wars, to the prosecution of which Mother Church was so warmlyurging them . Their great need was money; money the towns had; andfor money they bought privileges from departing crusaders. Very often,too, their one-time lords never returned from Palestine - never cameback to resume the powers so hastily and eagerly bartered away beforetheir departure. When they did return they returned impoverished , andin no condition of fortune to compete with those who had husbandedtheir resources at home. On every hand opportunities were made forthe perpetuation of town privileges.204 THE GOVERNMENT OF FRANCE.364. Municipal Privileges. The privileges extorted or boughtby the sturdy townspeople were, to speak in general terms, theright to make all the laws which concerned only themselves, theright to administer their own justice, the right to raise all taxes(as well those demanded by king or baron as those which theyimposed upon themselves for their own purposes) in their ownway, and the right to discipline themselves with police of theirown appointing. Such villages as contrived to obtain separateprivileges could of course obtain none so extensive as these.They often had to seek justice before baronial rather than beforetheir own tribunals; they could by no means always choose theirown way of paying unjust charges; they had often to submit torough discipline at the hands of prince's retainers; oftentimesthe most they could secure for themselves was a right of selfdirection in petty matters in which no one else was immediatelyinterested.365. The administrative functions exercised by the towns have beenthus summed up: the administration of communal property, the maintenance of streets and roads, the construction of public edifices , the supportand direction of schools, and the assessment and collection of all taxes.¹366. Forms of Town Government. The forms of self-government in the towns varied infinitely in detail, according to placeand circ*mstance, but the general outline was almost everywherethe same. Often there were two assemblies which took part inthe direction of municipal affairs, an Assembly of Notables anda General Assembly of citizens . These two bodies did not standto each other in the relation of two houses of a single legislature;they were separate not only, but had also distinct functions .The popular body elected the magistrates; the select body advisedthe magistrates; the one was a legislative, the other an executive,council. More commonly, however, there was but one assembly,the general assembly of citizens, which elected the magistrates,exercised a critical supervision over them, and passed upon allimportant municipal affairs. The magistracy generally consistedof a mayor and aldermen who acted jointly as the executive ofthe city (its corps de ville) , the mayor in most cases being only1 Ferron, p. 8.THE GOVERNMENT OF FRANCE. 205the president, never the ' chief executive, ' of the corporation, andmayor and aldermen alike being equal in rank and in responsibility in exercising their corporate functions .367. Decay or Destruction of Municipal Self-government.From this democratic model there were, of course, in almost allcases, frequent departures, quite after the manner formulated byAristotle (sec. 1397) . Oligarchy and tyranny both crept in, timeand again; nowhere did local liberties permanently preserve theirfirst vigor; everywhere real self- government sooner or later succumbed to adverse circ*mstances, crushed in very many cases bythe overwhelming weight of the royal power. Generally suchchanges were wrought rather by stress of disaster from withoutthan because of degeneracy within: and in very few cases indeeddid local liberty die before the community which had sought tomaintain it had given proof of a capital capacity for self-government. The independence of the cities died hard and has leftglorious memories behind it.- 368. Pays d'États. Early times saw self- government in theprovinces also. Many a feudal province had had its own ' Estates, ' its own triple assembly, that is, of nobles, clergy, andburghers, which met to discuss and in large part, no doubt, todirect provincial affairs . The provinces of old France, thirty- sixin number, represented separate feudal entities, much as theEnglish counties did (sec. 836) . The towns, on the other hand,in the central and northern portions of France at least, represented nothing but grants of privilege, were nothing but communities which had been given a special and exceptional placein the feudal order. The assemblies of the provinces, accordingly, were not primary or democratic like those of the towns,but were made up by ' estates, ' models for the States- Generalwhich appeared in 1302 (secs. 374, 375) .369. The provincial Estates were probably in their origin nothing elsethan normal feudal councils, made up, as they were, of representativesof all who possessed corporate or individual privileges, whose judgmentsand advice feudal dukes and counts found it redound to their greater peaceand welfare to hear and heed.370. In several of the provinces, as, notably, in Languedocand Brittany, these provincial Estates continued to meet and to206 THE GOVERNMENT OF FRANCE.exercise considerable functions down to the time of the Revolution. Such provinces came to be distinguished from the others.as pays d'états (provinces having Estates) , and it is largely fromthe privileges of their assemblies that we argue the general natureof the powers possessed by those which had passed out of existence before history could catch a glimpse of them. We see theEstates of the pays d'états clearly only after the royal power hasbound together all the provinces alike in a stringent system ofcentralization; they sit only at the king's call; their resolutionsmust be taken in the presence of the king's provincial officersand must await the regal sanction; they live by the royal favorand must in all things yield to the royal will . Nevertheless theirprivileges were still so substantial as to make the pays d'états theenvy of all the rest of France. They bought of the Crown theright to collect the taxes demanded by the central government;they retained to the last the right to tax themselves for the expenses of local administration and to undertake and carry throughentirely without supervision the extensive improvements in roadsand watercourses to which the local patriotism bred by local selfgovernment inclined them. Restricted though their sphere was,they moved freely within it, and gave to their provinces a vitality and a prosperity such as the rest of France, administered, asit was, exclusively from Paris, speedily and utterly lost.371. Territorial Development of the Monarchy. — The processof the organic development of the monarchy which centred in theduchy of France began with territorial expansion and consolidation. For eight centuries that expansion and consolidationwent steadily on; but its successful completion was assured before the extinction of the first, the direct, line of Capets in 1328.Before that date Philip Augustus had wrung Normandy fromEngland 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 beforethe Valois branch came into the succession only Flanders, Burgundy, and Brittany broke the solidity of the French power inthe north, and only Aquitaine, still England's fief, cut Franceoff from her wide territories in the southeast. It had been themission of the direct line of the Capets to lay broadly and irre-THE GOVERNMENT OF FRANCE. 207movably the foundations of French unity and nationality, andthey had accomplished that mission. They gave to their monarchy the momentum which was afterwards to carry it into fullsupremacy over Brittany, Aquitaine, and Burgundy, over theRhone valley, and over the lands which separated her from theRhine.372. The Crusades and the Monarchy. The monarchy, even morethan the towns (sec. 363) , profited by the effects of the crusades on thefeudal nobility. So great was the loss of life among the nobles, so greatwas their loss of fortune , that they fell an easy prey to the encroachingmonarchy. During the first crusades the French kings stayed at homeand reaped the advantages which the nobles lost; during the last crusades,the kings were strong enough themselves to leave home and indulge in theholy warfare in the East, without too great apprehension as to what might happen to the royal power in their absence.373. Institutional Growth - . - Of course along with territorialexpansion 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 vastlymore fatal to local self- government than the anarchy and confusion of feudal times had been. The cities could cope with neighbor lords; and during the period of contest between king andbarons they could count oftentimes upon assistance from the king:his interests, like theirs, lay in the direction of checking baronialpower. But when the feudal lords were no longer to be feared,the towns in their turn felt the jealousy of the king; and againsthis overwhelming power, when once it was established, theydared not raise their hands. The ancient provinces, too, had inthe earlier days found ways of bringing local lords into theirEstates, in which the right of the burghers to have a voice in thegovernment was recognized (sec. 368) . But they could no moreresist the centralization determined upon by a king triumphantover all feudal rivals than the towns could. In the end the provincial assemblies, where they managed to exist at all in the faceof the growing power of the Crown, were, like all other independent authorities of the later time, sadly curtailed in privilege,and at the last almost entirely lost heart and life.374. The States-General. — At one time, indeed, it seemed as -208 THE GOVERNMENT OF FRANCE.if the nation, in being drawn close about the throne, was to begiven a life of its own in a national parliament. Philip the Fair(1285-1314) , bent upon making good his authority against theinterference of the Pope in certain matters, bethought himselfof calling representatives of the nation to his support. Thekings of France had already often taken the advice upon publicaffairs of the baronage or of the clergy, each of which orders hada corporate existence and organization of its own, and thereforepossessed means of influential advising: but Philip called in theburghers of the towns also and constituted ( 1302) that StatesGeneral (États- Généraux) in which for the first time in Frenchhistory that ' third estate ' of the Commons appears which inlater times was to thrust both clergy and nobles out of power anditself rule supreme as ' the people. '375. Character of the States-General. The first States- General, summoned by Philip the Fair, reminds one not a little ofthe parliament called together in England in 1295 by Edward I.(secs. 848, 850) . Apparently France was about to have a parliament such as England's became, a representative body, speaking,and at the end of every important contest bringing to pass, thewill of the nation. But for France this first promise was not fulfilled. During three centuries, the fourteenth, fifteenth, andsixteenth (1302-1614) , it was the pleasure of the French monarchto keep alive, at first by frequent, and later by occcasional summons, this assemblage of the three Estates. This was the periodduring which feudal privileges were giving way before the royalprerogative, and it was often convenient to have the formal sanction of the Estates at the back of acts of sovereignty on the partof the Crown. But after the full establishment of the regal powerthe countenance of the Estates was no longer needed, and wasno longer asked . The States- General never, moreover, even inthe period of their greatest activity, became a legislative authority. For one thing, they had not the organization proper,not to say necessary, for the exercise of power. The three Estates, the Nobility, the Clergy, and the Commons ( Tiers État) ,deliberated apart from each other as separate bodies; and eachsubmitted its own list of grievances and suggestions to the king.They acted often in harmony, but never in union; their onlyTHE GOVERNMENT OF FRANCE. 209common meeting was the first of each session, when they allthree assembled in the same hall to hear a formal opening speechfrom the throne. They never acquired the right to be consultedwith reference to that cardinal affair of politics, taxation; theynever gained the right to sit independently of royal summons.They were encouraged to submit what suggestions they chose tothe government concerning the administration of the kingdom;and, as a matter of fact, their counsels were often heeded by theking. But they never got beyond advising: never won the rightto expect that their advice would be taken. Their sessions did,however, so long as they continued, contribute to keep alive aserviceable form of self-government which at least held the nationwithin sight of substantial liberties; and which, above all, securednational recognition for that ' third estate, ' the people, whosesturdiest members, the burghers of the towns, were real representatives of local political life.376. Administrative Development. Of course along with theterritorial expansion of the monarchy by annexation, absorption,and conquest there went also great administrative developments.As the monarchy grew, the instrumentalities of government grewalong with it possession and control advanced hand in hand.377. Growth of the Central Administration . - In the earlierperiods of the Capetian rule a Feudal Court and certain household officers constituted a sufficient machinery for the centraladministration. There was a Chancellor, who was the king'sprivate secretary and keeper of both the public and the privaterecords of the court; a Chamberlain, who was superintendent ofthe household; a Seneschal, who presided in the king's nameand stead in the Feudal Court, and who represented the king inthe direct administration of justice; a Great Butler, who wasmanager of the royal property and revenues; and a Constable, whowas commander of the forces . The Feudal Court, composed ofthe chief feudatories of the Crown, exercised the functions of atribunal of justice in suits between tenants in capite, besides thefunctions of a taxing body and of an administrative council (secs .228, 229, 237, 238) .378. The Council of State. So long as ' France ' was only aduchy and the real territory of the Crown no wider than the im-210 THE GOVERNMENT OF FRANCE.mediate domain of the Capetian dukes, the weight of administration fell upon the officers of the household, and the Feudal Courtwas of no continuous importance. But as France grew, thehousehold officers declined and the Feudal Court advanced inpower and importance. As the functions of the Court increasedand the Court became a directing Council, the Council more andmore tended to fall apart into committees, into distinct sections, having each its own particular part of the duties oncecommon to the whole body to perform. The earlier Councilsexercised without distinction functions political, judicial, andfinancial, and their differentiation, though hurried forward bymonarchs like Louis IX. , was not given definite completenessuntil 1302 (the year of the first States- General) when, by an ordinance of Philip the Fair, their political functions were assignedto the body which was to retain the name Council of State, theirjudicial functions to a body which was to bear the ancient nameof parliament (and which we know as the Parliament of Paris) ,their financial functions to a Chamber of Accounts . Alongsideof the Chamber of Accounts there sprang up a Chamber ofSubsidies which concerned itself with taxation. Into thesebodies, whose activity increased from year to year, the old officials of the household were speedily absorbed, the Great Butler,for instance, becoming merely the president of the Chamber ofAccounts .379. The Parliament of Paris. ---The judicial section of the Councilof State consisted at first like the other sections, like the whole Councilindeed, of feudatories of the Crown, as well as of administrative expertsgradually introduced . More and more, however, this chief tribunal tendedto become exclusively a body of technical officials, of trained jurists andexperienced lawyers, the law officers and advisers of the Crown.380. Growth of Centralized Local Administration: Louis IX .—This expansion of the central organs of administration meantthat the royal government was entering more and more extensively into the management of affairs in the provinces, thatlocal administration was being centralized. This extension ofcentralized local administration may be said to have begun inearnest under Louis IX. Louis IX. did more than any of hispredecessors to strengthen the grip of the monarchy upon itsTHE GOVERNMENT OF FRANCE. 211dominions by means of direct instrumentalities of government.He was a man able to see justice and to do it, to fear God and yetnot fear the Church, to conquer men not less by uprightness ofcharacter than by force of will and of arms; and his characterestablished the monarchy in its power. By combined strengthand even-handedness he bore down all baronial opposition; thebarons subjected to his will, he sent royal commissioners throughout the realm to discover where things were going amiss andwhere men needed that the king should interfere; he establishedthe right of appeal to his own courts, even from the courts of thebarons, thus making the Parliament of Paris the centre of thejudicial system of the country; he forced limitations of powerupon the feudal courts; he forbade and in part prevented judicialcombats and private warfare. He drew the administration of thelaw in France together into a centralized system by means ofroyal Baillis and Prévôts, whom he subordinated to the Parliamentof Paris.381. Steps of Centralization. It is not, of course, to be understoodthat Louis' work was to any considerable extent a work of creation: it wasnot, but rather a work of adaptation, expansion , systematization. Thesystem which he perfected had been slowly growing under his predecessors.A bailli was, in the Middle Ages, a very common officer, representingking or seigneur, as the case might be, administering justice in his name,commanding his men-at-arms, managing the finances , caring, indeed, forevery detail of administration. At first, it is said, " all of judicial, financial, and military administration was in his hands. " It was an old systemof royal baillis, set over districts known as bailliages ( bailliwicks ) , thatPhilip Augustus instituted ( 1190 ) and Louis IX. extended and regulated,keeping an eye to it, the while, that the baillis should be made to feel theirdependence upon the Crown so constantly that they should per force remain officials and not dream of following the example of dukes andcounts and becoming independent feudal lords on their own accounts.382. Personal Government: Louis XIV. - Such measures naturallytended to subordinate all local magnates to the king. By the policy ofLouis XIV. this tendency was completed: the whole of the nobility ofFrance were, so to say, merged in the person and court of the king.Louis took care to have it understood that no man who remained uponhis estate, who did not dance constant attendance upon his majesty, theking, at his court, to add to its brilliancy and servility, might expect anything but disfavor and loss. He made of the great landed nobility a courtnobility, turning men from interest in their tenants and their estates to212 THE GOVERNMENT OF FRANCE.interest in court intrigue alone. He drew all men of rank and ambitionto himself, merged them in himself, and left nothing between the monarchy and the masses whereby the terrible impact of the great revolutionwhich was to come might be broken.383. The Completed Centralization: the Intendant. Finallycame the completed centralization which followed the days ofRichelieu: the system whose central figure was the Intendant, adirect appointee and agent of the king and absolute ruler withinthe province; and whose lesser figures were the sub- delegates ofthe Intendant, rulers in every district and commune. The rule ofthese agents of the Crown almost totally extinguished the separateprivileges of the elected magistrates of the towns and of the otherunits of local government. In many places, it is true, the peoplewere suffered still to elect their magistrates as before; but theusurping activities of the Intendant and his subordinates speedilyleft elected magistrates with nothing to do. In other cases elections ceased; the Crown sold the local offices as life estates to anyone who would buy them for cash.384. The Province was a military, not a civil, administrative district.The Provinces were grouped into Generalities, of which there were in allthirty-two, and it was over a Generality that each Intendant ruled . Ecclesiastical administration was served by still another distinct division intoDioceses.385. Judicial Centralization. The local tribunals of justice inlike manner had their business gradually stolen from them. Theprinciple of appeal established by Louis IX. at length worked itsperfect work. Every case in which any interest cared for fromParis (and what interest was not?) was either actually or by pretence involved was ' evoked ' to special courts set up by royalcommission. No detail was too insignificant to come within theusurpations of the king's government.386. The Royal Council and the Comptroller-General. — TheRoyal Council at Paris regulated, by ' orders in council, ' everyinterest, great or small, in the whole kingdom. The ComptrollerGeneral, acting through the Intendants and their sub- delegates,and through the royal tribunals, managed France. Everybody'saffairs were submitted to him, and through him to the RoyalCouncil; and everybody received suggestions from Paris touchingTHE GOVERNMENT OF FRANCE. 213his affairs. No labor of supervision was too overwhelming forthe central government to undertake. Interference in local affairs,made progressively more and more systematic, more and moreminute and inquisitive, resulted, of course, in the completestrangulation of local government. All vitality ran to the veinsof the central organism , and, except for the lingering and treasured privileges of the pays d'états, and for here and there a persistent form of town life, France lay in the pigeon- holes of abureau. Tabla rasa had been made of the historical elements oflocal government.387. The Spirit of the Administration. —This busy supervision oflocal and individual interests was always paternal in intent; and theintentions of the central power were never more benevolent than justwhen the Revolution was beginning to draw on apace. " The royal government was generally willing in the latter half of the eighteenth centuryto redress a given case of abuse , but it never felt itself strong enough, orhad leisure enough, to deal with the general source from which the particular grievance sprang. ” 1388. The Revolution.XTh.This whole fabric of government wentfor a moment to pieces in the storm of the Revolution. But therevolutionists, when their stupendous work of destruction hadbeen accomplished, were under the same necessity to govern thathad rested upon the monarch whom they had dethroned and executed; and they very soon proved themselves unable to improvemuch upon the old patterns of government. In denial of the indefeasible sovereignty of the king, they proclaimed, with huzzahs,the absolute sovereignty of the people; but Assembly and Convention could do no more than arrogate all power to themselves,as the people's representatives, and seek to reign in the king'sstead through the king's old instrumentalities. They gave voiceto a new conception, but they could not devise a new frame ofadministration. The result was confusion, Committees, theTerror, and —Napoleon.--389. The Reconstruction by Napoleon. The Revolution removed all the foundations of French politics, but scarcely any ofthe foundations of French administration . The interests of the66 1 John Morley, Miscellanies, Vol. II. ( last Macmillan edition ) , essay onTurgot, " p. 138.214 THE GOVERNMENT OF FRANCE.-royal administration had centred in the general government,rather than in its local parts, in patronage, in the aggregatenational power and prosperity, in finance . The true interestsof republican government, on the other hand, centre in thoroughlocal development: republican work, properly done, ought totend to broaden and diversify administrative work by diversifying political life and quickening self-directive administrativeagencies. But this the leaders of the Revolution neither saw norcould do; and Napoleon, whom they created, of course made noeffort to serve republican development.390. Napoleon simply reorganized despotism. In doing so,however, he did scarcely more than carry into effect the principalpurposes of the Constituent Assembly. The legislation of thatAssembly had sought, not to shatter centralization , but to simplify and systematize it; and it was this purpose that Napoleoncarried out. For the Convention and Assembly, as representatives of the nation's sovereignty, he substituted himself; andthen he proceeded to give to centralization a perfected machinery.The Convention and Assembly had endeavored to direct affairsthrough Committees, Commissions, Councils, Directories,through executive boards, in a word. For such instrumentalitiesNapoleon substituted single officers as depositaries of the severaldistinct functions of administration; though he was content toassociate with these officers advisory councils, whose advice theymight ask, but should take only on their own individual responsibility. " To give advice is the province of several, to administer,that of individuals, ' says the maxim which he engraved on thepediment of the administrative arrangements of France, " toremain there to the present day. The Constituent Assembly,willing to obliterate the old Provinces of France, with theirmemories of feudal privilege, and the Generalities, with theirancient savor of absolutism , had redivided the country, as symmetrically as possible, into eighty-nine Departments; and it wasupon this territorial framework that Napoleon superimposed amachinery of Prefects and sub- prefects, modelled, with simplifications and improvements of method, upon the system of Intendants and delegates of the old régime. This he accomplished in¹ Marquardsen's Handbuch, Lebon's monograph on France, p . 78.THE GOVERNMENT OF FRANCE. 215that celebrated " Constitution of the Year VIII. " which still liesalmost undisturbed at the foundation of French administration.The Revolution had resulted in imparting to centralization whatit never had had before: namely, assured order and effectivesystem.391. Since the war between France and Germany in 1870- ' 1 , the Departments of France have numbered only eighty- six, the loss of Alsaceand Lorraine having subtracted three Departments.392. Advances towards Liberal Institutions. Nevertheless,the Revolution had asserted a new principle of rule, and everychange of government which has taken place in France since theRevolution has pushed her, however violently, towards genuinerepresentative institutions and real republicanism . Louis XVIII . ,though he persisted in holding to the divine right of kings and inretaining for himself and his ministers an exclusive right of initiative in legislation, assented to the establishment of a parliament of two houses and conceded to it the responsibility of theministers . Louis Philippe abandoned the delusion of the ' divineright, ' acknowledged the sovereignty of the people, and sharedwith the chambers the right of initiative in legislation . WithNapoleon III. came reaction and a return to a system like thatof the first Napoleon; but even Napoleon III . had consented toreturn to the practice of ministerial responsibility before thewar with Germany swept him from his throne and gave birth tothe present Republic.www . 393. The Third Republic. Sedan having fallen (September 2) ,and the Emperor having been taken prisoner, the imperial government went to pieces, and on Sunday the fourth of September,1870, the leaders of uneasy Paris proclaimed the Third Republic,Gambetta being their mouthpiece. A provisional governmentwas at once set up by the republican leaders, under the name ofthe National Defence. The men who constituted it were fullyaware that they legally represented nobody but themselves, thatthey had usurped power in the face of a national crisis and wereacting by sufferance, and it was their purpose to call together anational assembly at once, an assembly chosen by universal suffrage, in order that the people's representatives might construct216 THE GOVERNMENT OF FRANCE.in more formal fashion a government of their own. Immediatepreparations were accordingly made for an election . But therapid and fatal progress of the war prevented. Germany pressedher victories to the utmost. It was not possible to hold an assembly at all until the end had come and it had become necessaryto decide terms of submission and peace.394. The National Assembly of 1871-1876. - On the 8th ofFebruary, 1871 , a National Assembly was elected, and on the13th of the same month it convened for the transaction of itsbusiness at Bordeaux . It turned out not to be a republican body.Of its seven hundred and sixty-eight members a majority werefound to be in favor of a monarchical form of government. Hadthat majority been united, it could have undone the work of Gambetta and his colleagues and have set a prince once more uponthe throne of France. But it could not unite. Some, the ' Legitimists, ' wished to see the old house of Bourbon restored;others were partisans of the house of Orleans; a few were Imperialists and wanted the empire of the Bonapartes set up again.The first business of the Assembly was easily disposed of, humiliating though it was. Peace was concluded with Germanyupon her own terms, only Belfort being saved by the diplomacyof Thiers. The matter of real difficulty was the establishmentand maintenance of a government. For the time being, and untilsomething better and more permanent could be agreed upon, thename and the forms of the Republic were kept. M. Grévy, amoderate Republican, was made President of the Assembly; M.Thiers, a moderate Orleanist, was chosen ' Chief of the ExecutivePower ' of the Republic (a title presently changed to President);and the Assembly itself undertook to direct affairs, through thePresident as its responsible agent.395. A Balance of Parties. For five years the Assembly maintained its authority and hold upon affairs . It had been given noformal commission at the elections what it should do. It hadbeen clearly enough understood, of course, that it was first of allto come to terms of peace with Germany; but no one knew whatthe voters had expected it would do after that. It had neitherbeen commissioned to form a government nor to conduct one, andyet it certainly had not been forbidden to do either. The Repub-THE GOVERNMENT OF FRANCE. 217licans, finding themselves in a minority, urged that the Assemblyhad no authority to make a permanent constitution, and demandedthat it should be dissolved and the people asked to choose a newassembly explicitly authorized to frame a government. Themonarchical majority, however, feared that they should not havesuch another chance as the present to frame a government to theirown liking, and claimed that as a National Assembly electedwithout instructions the existing body had practically receivedsovereign powers from the electors and might do as it pleased,watching, as prudent men should, the while, the temper of thecountry. The real difficulty was to hit upon a practicable programme, agreeable to all factions of the monarchists . Theinterests of the factions proved in fact irreconcilable and it soonbecame evident to conservative and observant men of every opinion that the Republic must be left standing. Thiers declaredvery frankly that he would have preferred a constitutional monarchy; but he believed a republic to be the real preference of thecountry, and he knew that to attempt the restoration of any oneof the royal houses would be in the highest degree dangerous andrevolutionary under the circ*mstances. " The Republic exists,he said; "it is the legal government of the country; to wish foranything else would be a revolution. " The monarchists had atall events lost their opportunity by waiting; opinion ran steadilyagainst them, and it was presently too late.-""396. The Framing of the Constitution. The more statesmanlike and practical men amongst them saw at last very clearly thatthey must frame a republican government or none at all; but theydetermined to do as little as possible towards making the constitution they should give it definitive and difficult of alteration .They would make the forms of the new government such that itcould at any rate be readily changed, and that without radicalamendment, into a constitutional monarchy. They gave it, accordingly, as simple and rudimentary a frame as possible, leaving almost every detail, and even some of the main arrangementsof its administration, to be settled by ordinary legislation; andthey took care to make constitutional change as easy and informala matter as might be without risking immediate instability . Forfour years they experimented with the government they had:218 THE GOVERNMENT OF FRANCE.defining the powers of the President and their own relations tohim more than once, as if tentatively, and so as it were testingand shaping the arrangements to which they should ultimatelygive permanency. About a month after its convening the Assembly removed from Bordeaux to Versailles. While the Commune ruled Paris the leaders of the Assembly could of coursethink of nothing but the measures necessary to establish orderand the authority of the government. When order had been restored, it was still necessary to handle the finances and arrangemany disordered matters of administration. What with the difficulties of governing the country and the even greater difficulty ofquieting its own factions, it proved impracticable for the Assembly to enter upon the work of constitution-making before 1873.The work was not completed before the closing months of 1875.397. Meanwhile ( August 31 , 1871 ) , by the same act which conferredupon him his new title of President of the Republic, the Assembly haddefined its relations to Thiers, constituting him its responsible minister,with the right to appoint the other executive officers of the government andto address the Assembly upon all matters of public business, and givinghim a term of office which should last until it should have finished its ownbusiness. In March, 1873, thinking him too dominant in its counsels, ithad sought to exclude the President from its debates, except upon extraordinary occasions, and to put a responsible cabinet of ministers betweenitself and the head of the government. Two months later it forced M.Thiers to resign and elected Marshal MacMahon to exercise the office ofPresident in his stead, fixing his term at seven years and leaving the scopeof his authority and of his relations to the legislature to be determined bythe definitive constitutional laws it was about to frame. It had experimented long enough at governing and at the making and modifying ofExecutives, and was ready, as it no doubt saw the country was, for itsfinal task.-398. Scope and Character of the Constitutional and OrganicLaws of 1875. — In framing the laws which were to give shape tothe new government the Assembly distinguished between thosewhich were to be ' constitutional ' and subject to change only byspecial processes of amendment, and those which, though ' organic, ' were to be left subject to change by the ordinary processesof statutory enactment by the two Houses of the Legislature.The ' constitutional ' laws, passed February 24th and 25th and JulyTHE GOVERNMENT OF FRANCE. 21916th, 1875, respectively, dealt in the simplest possible mannerwith the larger features of the new government's structure andoperation: the election and general powers of the President; thedivision of the National Assembly into two houses, a Senate andChamber of Deputies; the general powers and mutual relations ofthe two Houses, the President's relation to them, and the generalrules which should control their assembling and adjournment.Two ' organic ' statutes, bearing date August 2nd and November30th, 1875, respectively, provided for the election of Senators andDeputies. The only radical amendment of the ' constitutional 'laws since then effected was made in August, 1884, when almostthe whole of the constitutional law regarding the composition andpowers of the Senate was repealed, and replaced by an ' organic 'law (that is, an ordinary statute) which introduced a number ofimportant changes, and left the organization and authority of theSenate henceforth open to the freest legislative alteration, likelyto be checked only by the circ*mstance that the Senate must itselfassent to the changes made. The ' organic ' laws of 1875 withregard to elections to the Chamber of Deputies have been severaltimes amended.-- 399. The Sovereignty of the Chambers. There can be no doubtthat the National Assembly had invested Marshal MacMahonwith the presidential power, upon the resignation of M. Thiersin May, 1873 , with a distinct purpose. MacMahon was at once apopular and patriotic soldier and a partisan of monarchy. It washoped that he might keep the chief executive place of the nationwarm for some sovereign to be afterwards agreed upon and enthroned, not necessarily by coup d'état: perhaps by a meremodification of the constitutional laws with regard to the personand powers of the head of the state . Sovereignty, nevertheless ,passed under the new constitution to the new National Assembly,the Senate and Chamber of Deputies. The ' constitutional ' lawsof 1875 can be changed at will by the legislature which they calledinto existence: changed by the simple substitution of action injoint Assembly for the ordinary separate action in two houses.The Senators and Deputies have but to unite in National Assembly to become as sovereign as the Assembly which created them(see sec. 411 ) . They are, besides, the sole judges of their own220 THE GOVERNMENT OF FRANCE.constitutional powers. No courts restrain them. France, likeEngland, vests in her parliament a complete sovereignty of discretion as to its own acts.400. The principal difference between the two cases is , that the EnglishParliament may exercise all its powers in the same way, by the ordinaryprocedure of enactment, whether it changes by the act a mere detail ofthe common law or a chief arrangement of the constitution of the realm,while the French chambers are put under limitations of procedure inrespect of every alteration of the fundamental law.-401. The constitutional arrangements thus effected have thisadmirable difference from all other previous constitutions Francehas had since the Revolution: they do not pretend to constitutethe whole body of her fundamental public law. They excludeneither precedent nor growth. In practice even the precedentsof previous constitutions have been suffered to have a part in supplementing them. So much of former constitutional usage as isnot incompatible with the laws and character of the Republic isregarded as still in force. There has been no absolute breakwith the past, but only a new construction on old foundations.402. The Chamber of Deputies. It was the hope of the constitution-makers of 1875 that the Senate would have equal weightin affairs with the Chamber of Deputies; but that hope has beendisappointed . Effective power has fallen from the first to thepopular chamber, and the Senate has been thrust into a secondaryrôle. Of the choice of members of the Chamber of Deputies, theconstitutional laws say no more than that they shall be electedby universal suffrage. ' Organic ' statute law has organized theChamber on the basis of one deputy to every seventy thousandinhabitants. Deputies must be at least twenty- five years of age,and their term , unless the Chamber be sooner dissolved, is fouryears. The eighty-six Departments into which the country isdivided are the basis of representation in the Chamber, as in theSenate (sec. 406) . To each Department is assigned a certainnumber of deputies, according to its population; every Department, however, whatever its population, being entitled to at leastthree representatives. The deputies are elected, not ' at large 'for the whole Department, that is, on a general ticket, but bydistricts, as members of our federal House of RepresentativesTHE GOVERNMENT OF FRANCE. 221are chosen in the States (sec. 1286) . The Arrondissem*nts serveas ' congressional districts, ' as we should call them, and thismethod of voting is accordingly known in France as scrutind'arrondissem*nt (ballot by arrondissem*nt) .403. This was the original arrangement of 1875; but in 1885 the systemof voting for deputies in each Department on a general ticket, as we votefor presidential electors in the States, was introduced, being called scrutinde liste (ballot by list ) . It was adopted at the suggestion of Gambetta,who thought that a system of general tickets would give his party a freersweep of popular majorities. In 1889, however, scrutin d'arrondissem*ntwas reestablished , because scrutin de liste had given too free a sweep tothe popular majorities of General Boulanger.404. The principal colonies, too, are entitled to representationin the Chamber. Algiers sends five deputies; Cochin- China,Guadaloupe, Guyana, India, Martinique, Réunion , and Senegaleach send one. All counted, there are five hundred and eightyfour deputies. Elections to the Chamber do not take place atregular intervals and on fixed dates named by statute, but must beordered by decree from the President of the Republic in each case.The law directs, however, that the President must order an election within sixty days, or, in case of a dissolution, within twomonths after the expiration of a term of the Chamber; and thatthe new Chamber must come together within the ten days following the election. At least twenty days must separate decree andday of election.405. Election by Majority. The law governing the election ofDeputies provides against choice by plurality on the first ballot; and theresult is unfortunate . If there are more than two candidates in an electoral district (an arrondissem*nt) , an election on the first ballot is possible only if one of the candidates receives an absolute majority of all thevotes cast not only, but also at least one-fourth as many votes as thereare registered voters in the district. If no one receives such a majority,another vote must be taken two weeks later, and at this a plurality issufficient to elect. The result is, that the multiplication of parties, orrather the multiplication of groups and factions within the larger partylines, from which France naturally suffers overmuch, is directly encouraged. Rival groups are tempted to show their strength on the first ballotin an election, for the purpose of winning a place or exchanging favorfor favor in the second. They lose nothing by failing in the first; they222 THE GOVERNMENT OF FRANCE.may gain concessions or be more regarded another time by showing alittle strength; and rivalry is encouraged, instead of consolidation. Francecannot afford to foster factions.406.406. The Senate. - By an act of the National Assembly passedAugust 14th, 1884, almost the whole of the constitutional law ofFebruary 24th, 1875, relating to the organization of the Senateand to the qualifications and election of senators was stripped ofits ' constitutional ' character and became an ordinary statute.Four months later it was replaced by the act of December 9th,1884. In all that respects its organization and in much that respects its powers the Senate has become a merely statutory body.So far as the ' constitutional ' laws are concerned, it might be constituted by executive appointment or by lot. By statute it hasbeen made to consist of three hundred members chosen by ' electoral colleges ' specially constituted for the purpose in the severalDepartments and colonies, and the term of senatorship has beenfixed at nine years . Forty years has been declared the minimumage for senators. The electoral college for the choice of senatorsis composed in each Department of the deputies from the Department, the members of the ' General Council ' of the Department(sec. 447) , and the members of the Councils of its several Arrondissem*nts (sec. 455) , together with delegates chosen in eachCommune by the Communal Council from among the qualifiedvoters of the Commune ( sec. 464) . One-third of the membershipof the Senate is renewed every three years. In legal powersthe Senate is in all respects upon a footing of equality withthe Chamber of Deputies, except that money bills must originate with the Chamber; and though it has in practice been conceded that the Senate may amend them, it has been doubtedwhether it can of strict legal right add to money bills . Inpolitical power, of course, the Chamber overshadows and dominates the Senate.407. Until 1884 the law provided that seventy-five of the senatorialseats were to be filled by the choice of the Senate itself, and held for life .By virtue of the constitutional change effected in 1884, all vacancies occurring in these life-memberships are now filled by election in the Departments, as other seats are, and for the usual term of nine years . Thisprocess will in time, of course, do away with all life-membership.THE GOVERNMENT OF FRANCE. 223408. Legislation determines from time to time how many senators shallbe elected by each Department. According to the present distribution tenare returned by the city of Paris, which itself constitutes the Departmentof the Seine. Other Departments vary in their representation from two toeight. "The following elect one senator each: the Territory of Belfort, thethree Departments of Algeria, the four colonies, Martinique, Guadaloupe,Réunion, French Indies. " ( Law of Dec. 9, 1884. )- 409. In Case of Usurpation. In case the Chambers should be illegally dissolved or hindered from assembling, the General Councils of theDepartments are to convene without delay in their respective places ofmeeting and take the necessary steps for preserving order and quiet.Each Council is to choose two delegates to join delegates from the otherCouncils in assembling at the place whither the members of the legal government and the regular representatives of the people who have escapedthe tyranny have betaken themselves. The extraordinary assembly thusbrought together is authorized to constitute itself for business when halfthe Departments shall be represented; and it may take any steps thatmay be necessary to maintain order, administer affairs, and establish theindependence of the regular Chambers. It is dissolved, ipso facto , so soonas the regular Chambers can come together. If that be not possible, it isto order a general election , within one month after its own assembling.Frie410. The National Assembly: its Functions. The Senate andChamber of Deputies meet together in joint session as a NationalAssembly for two purposes: the revision of the Constitution andthe election of the President of the Republic. Since November,1879, the Houses have met for the performance of their ordinarylegislative 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 forthe election of the President or for the revision of the Constitution, the National Assembly must do the single thing which ithas convened to do and then at once adjourn . For the electionof the President there are clearly determined times and occasions: whenever the office of President falls vacant, whether bythe death or resignation of the President or by the expiration ofhis term .411. Revision of Constitution . -- A revision of the Constitution may take place whenever the two Houses are agreed thatrevision is necessary. It has, thus far, been customary for theHouses to consider separately beforehand not only the propriety224 THE GOVERNMENT OF FRANCE.of a revision, that standing constitutional rules require, butalso the particular points at which revision is necessary andthe lines on which it should proceed; and to know each other'sminds on these important heads before agreeing to a NationalAssembly. Alike for the election of a President and for theadoption of constitutional amendments an absolute majority vote.of the united Chambers suffices .412. It might easily happen that the majority in one of the Houseswould be outvoted on joint ballot in National Assembly. If such werelikely to be the case, that majority could hardly be expected to consent readily to a joint session. France has, not two, but many nationalparties, and it is not always possible to effect the same combination offactions in support of a measure in both the Houses. Cases must frequently arise in which a joint vote of the Houses upon a particular measurewould carry with it defeat to the policy preferred in one of them . Andyet there is no legal obstacle to prevent the majority in a joint sessiontaking up and deciding questions not agreed upon beforehand. The onlyguarantee is good faith.413. The National Assembly is the most completely sovereignbody known to the Constitution, there being but one thing itcannot do under existing law: it cannot sit as long as it pleases.Its sessions must not exceed in length the duration of an ordinary legislative session ( five months) . It is, indeed, forbidden ,besides, to consider the repeal of republican government; but itcould repeal the law which forbids it.414. The officers of the Senate act as officers of the National Assembly.They consist of a President, four Vice-Presidents, six Secretaries, andfour Quæstors, elected for one year. The Chamber of Deputies has thesame offices, with the addition of two more secretaryships.415. The President of the Republic. The president, elected bythe joint ballot of the Chambers, is titular head of the Executiveof France. His term of office is seven years. He has the powerHe of appointing and removing all officers of the public service.has no veto on legislation, but he is authorized to demand a reconsideration of any measure by the Houses. He can adjourn theChambers at any time (though not more than twice during thesame session) for any period not exceeding one month; he canclose a regular session of the Houses at his discretion after it hascontinued five months, and an extra session when he pleases; andTHE GOVERNMENT OF FRANCE. 225he can, with the consent of the Senate, dissolve the Chamber ofDeputies, even before the expiration of the five months of itsregular session. A dissolution of the Chamber of Deputiesputs an end also to the sessions, though not to the life, of theSenate; for it cannot act, except as a court, without the Chamber.In the event of a dissolution, as has been said, the Presidentmust order a new election to be held within two months thereafter, and the Houses must convene within ten days after theelection. "The President is responsible in case of high treasononly, " says the constitutional law of February 25th, 1875; and,in case of high treason the Chamber must impeach, the Senatetry, him. As a matter of fact, however, four out of the sixPresidents of the Republic have been forced or have chosen toresign. Not one has completed his full term of seven years: forCarnot was assassinated and Faure has been ( 1897) but two yearsin office.416. The only limitation put by law upon the choice of the NationalAssembly in electing a President of the Republic is , that no one shall bechosen President who is a member of any family which has occupied thethrone of France. Members of these families are also excluded fromseats in either the Chamber or the Senate.417. The President's power of dissolving the Chamber might, on occasion, be used to bar even the proceedings of the National Assembly. Theconsent of the Senate having been obtained , the President could dissolvethe Chamber while the National Assembly was in session, and so deprivethat body of two-thirds of its members, leaving it without that absolutemajority, ' lacking which it can take no authoritative action. Such acourse would, however, be clearly revolutionary, more revolutionarythan any action of the Assembly that it might be used to prevent , ― andwould, though perhaps technically defensible, have no real sanction of law.-418. Influence of President and Senate. The President and Senate,it will be seen, are given a really very great power of control over theChamber of Deputies. It is within the choice of the President to moderate the excesses of the Chamber by returning bills to it for reconsideration, or by adjourning it during a period of too great excitement; and itis within the choice of the President and Senate acting together to appealfrom its decisions to the constituencies by a dissolution. The Senate,moreover, has once and again been given so many members of real weightof character and distinction of career that it would seem to have been ina position to act in restraint of the Chamber with firmness and success.But, though the National Assembly which elected Thiers and MacMahonGrevy?226 THE GOVERNMENT OF FRANCE.and put together the framework of the constitution may have intended thenew government to be in some real sense a government by the President,it has in fact never shown the President in any degree a master in affairssince the days of MacMahon himself. MacMahon exercised the power ofdissolution , with the approval of the Senate; but the change of Deputiesonly taught him the real character of the government, as a governmentsubject to the will of the Chamber. Year by year the subordinate positionof the Senate and the irregular but always irresistible power ofthe Chamberhave become more and more obvious. The later presidents have been menof so little commanding force and the Senate has played so timid a partin affairs that their position of advantage has been altogether sacrificed;and the unbridled license of the Chamber constitutes one of the chiefmenaces to the success and even to the existence of the Republic.419. The Cabinet and the Council of Ministers. A Cabinet ofministers constitutes a link between the President and the Chambers: and the political functions of this Cabinet are amongst thecentral features of government in France . It is to be carefullydistinguished from the Council of ministers; both the Cabinet andthe Council consist of the same persons; but the Cabinet is apolitical body exclusively, while the Council has only administrative functions . The distinction illustrates pointedly thedouble capacity of the ministers .420. The Ministries. —There are now eleven ministers: the Ministerof Justice, filling the office filled before the Revolution by the Chancellor;the Minister of Finance, who has taken the place of the Comptroller-General of ante-revolutionary days ( sec. 386 ); the Minister of War, who actsas head of the administrative department created in the time of Mazarin(1644); the Minister of Marine and the Colonies ( 1644); the Minister ofForeign Affairs ( 1644); the Minister of the Interior, an office created bythe Constituent Assembly in 1791 , by a consolidation of the pre- revolutionary offices of Comptroller- General and Minister of the Royal Household,except so far as the functions of the Comptroller-General were financialand bestowed upon the Minister of Finance; the Minister of Public Instruction (1848) , Religion ( 1848) , and the Fine Arts; the Minister of PublicWorks; the Minister of Agriculture ( an office created in 1812, but afterwards abolished, to be revived in 1828-30 ); the Minister of Trade andIndustry; and the Minister of Posts and Telegraphs. These last twooffices were created in 1848 by subtraction from the department of theInterior.421. The Cabinet. As a Cabinet, the ministers represent theChambers. They are commonly chosen from amongst the mem-THE GOVERNMENT OF FRANCE. 227terebers of the Houses; but, whether members or not, they have, asministers, the right to attend all sessions of the Chambers and totake a specially privileged part in debate. The same right extends also to the Under- secretaries of Finance, of the Interior,of the Colonies, and of Fine Arts, who are, consequently, usuallymembers of the Chambers.A minister may speak at any time in the Chambers; not even theclôture (previous question ) can exclude him.In 1888 the Minister of War was without a seat in the Chamber.-422. The Council of Ministers. As an administrative Councilthe ministers are, in official rank at least, subordinate to thePresident, who is the Chief Executive. The Council sits in hispresence, though not under his presidency, but under that of aspecial ' President of the Council ' chosen by the ministers fromamongst their own number. Its duty is to exercise a generaloversight of the administration of the laws, with a view to givingunity of direction to affairs of state. In case of the death, resignation, or incapacitation of the President of the Republic, theCouncil is to act in his stead until the National Assembly canmeet and elect his successor. Its members are ex officio membersof the Council of State, the highest judicial tribunal of the Republic for the determination of administrative cases (sec. 468) .423. Relation of the Ministers to the President. The Councilof Ministers is a body recognized by law, the Cabinet is not: itis only the ministers in consultation concerning matters affectingtheir political responsibility: it is, aside from such meetings forconsultation, only a name representing their union in responsibility . But the two names, Council and Cabinet, furnish convenient means for making plain the various relations of theministers to the President. As a Council they are, in a sense,his creation; as a Cabinet they are, in a sense, his masters . TheExecutive Departments or Ministries over which they presideare the creation, not of the Constitution or of statutes, but of thePresident's decree . No decree of the President is valid, however,unless countersigned by the minister 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 ministers228 THE GOVERNMENT OF FRANCE.and the Chambers. The ministers are the President's appointees;but he must appoint ministers who are in agreement with themajority in the Chambers, and they are responsible to the Chambers alone for their conduct in office . The President is the headof the administration; but his salary is dependent upon theannual budget which the Minister of Finance presents to theChambers: and the items of the budget are matter of agreementbetween the ministers and the Chambers.424. All these ' buts ' are so many fingers pointing to thepower of the Cabinet over the President. The Ministers are infact not his representatives, but representatives of the Chambers.In this capacity they control not the policy only, but also thepatronage of the government. Naturally the President's appointments, needing, as they do in every case, the countersignature ofa minister, are in general the appointments of the ministers; andtheir appointments are too often bestowed according to their interest in the Chambers, are too often used, in short, to be castas bait for votes.425. The Patronage of Office, indeed, threatens to become even moreof a menace to good government in France than it has been to good government in our own country under the federal system of appointment. Thenumber of offices in the gift of the ministers in France is vastly greaterthan the number within the gift of the President of the United States;and the ministers' need to please the Chambers by favors of any and allkinds is incomparably greater than our President's need to please Congress, since they are dependent upon the good-will of the Chambers fortheir tenure of office , while he is not dependent on Congress for his.426. There have never yet been in France, however, any such wholesale removals from office upon the going out of one administration and thecoming in of another as we have seen again and again in this country;because there has really been no radical change of administration inFrance since the days of MacMahon. In this country, as in England,there are two great national parties, and the government is now in thehands of one and again in the hands of the other. But in France a changeof cabinet means nothing more than a change from the leadership of onegroup of Republicans to the leadership of another, —or, at most, a changefrom the leadership of Republicans to the leadership of Radicals, who aresimply extreme republicans. In England we hear of " Her Majesty'sOpposition ": the party of the minority for the time being is known to beas patriotic, as much attached to the existing form of government, as safeto entrust power to , should it obtain a majority in the Commons, as the-THE GOVERNMENT OF FRANCE. 229party in office . But in France it is not so. Until very recent years, theonly real party opposed to the Republicans was made up of persons knownor suspected to be hostile to the very form of government under which thecountry is living. The people have never given it a majority in theChamber, and have never been willing to entrust it with office . Onegroup of Republicans , therefore, succeeds another; one faction goes outof office, another comes in. Generally a new cabinet, just come in, iscomposed in part of men who held office also in the cabinet just thrust out.It is a change only of chief figures. And so wholesale removals fromoffice do not take place.- 427. Ministerial Responsibility. The responsibility of theministers to the Chambers is of law, and not simply of customas in England. Their tenure of office is dependent upon thefavor of the Houses. It would doubtless be so without law, forno policy of theirs could succeed without legislative approval andsupport, and it is French precedent as well as English for ministers to resign when defeated . They resign because they will notcarry out measures of which they disapprove. In theory theirresponsibility is to both Houses; but, as a matter of fact, it isonly to the Chamber of Deputies . The votes of the Senate aloneseldom make or unmake Cabinets; that has come to be recognized as the prerogative of the popular Chamber, which is moredirectly representative of the nation.428. Questions and Interpellations . The ministers may beheld closely to their responsibility at every turn of their policyby means of various simple and effective forms of inquiry on thepart of the Chambers. First of all is the direct question . Anymember of either House may, after due notice given to the minister concerned, ask any question as to affairs of state; and ananswer is demanded, by custom at least, to every question whichcan be answered publicly without detriment to the public interest.Next to the direct question, which is a matter between the individual questioner and the minister questioned, comes that broaderform of challenging the policy of the Cabinet, known in Franceas the 'Interpellation. ' The simple questioner must first get theconsent of the minister to hear his question; an interpellation, onthe contrary, can be brought on without awaiting the acquiescenceof the minister. It is a special and formal challenge of thepolicy or action of the Cabinet on some matter of the day, and is230 THE GOVERNMENT OF FRANCE.commonly the occasion of a general debate. It usually results ina vote expressive of confidence or want of confidence in the ministers, as the case may be. It is the question exalted into asubject of formal discussion: it is the weightiest form of interrogating ministers: it makes them and all that they have done theobjects of set attack and defence. A third and still more formalmethod of bringing administrative acts under the scrutiny of theChambers consists in the appointment of a Committee of Investigation.429. The power of interpellation has been so indiscriminately and unwisely used in France as seriously to discredit her system of cabinet government. The Chamber of Deputies is notoriously an intemperate body,and it seems constantly inclined to make of government a game at whichit may match its wits with those of the ministers of the day. Interpellation is unhesitatingly used to take the ministers by surprise . Deputieslie in wait to take them at a disadvantage. They are interpellated , 'moreover, most often, not upon questions of first-rate importance or inany way representative of their policy, but upon trivial matters of themoment. A sudden impulse upon a minor question of administrationoften determines the vote, and a cabinet goes out, it may be, as if by atrick, not because its policy has been rejected or discredited , but because a chance and temporary majority has been got together against it.It is said that " out of the twenty-nine ministries that have resigned in *consequence of a vote of the Chamber of Deputies since the cabinet hasbeen made responsible, ten have fallen on account of orders of the daymoved after an interpellation , or in course of a debate. Several of theseorders covered, indeed, the general policy of the cabinet, but others hadno such broad significance." ( Lowell, I. , 122. )430. The ministers are, therefore, hardly more than nominally theleaders of the Chamber, holding their authority for brief periods andupon a very precarious tenure. For a little they represent a combinationof Republican groups; they have almost never since the establishment ofthe Republic had a thoroughly hom*ogeneous majority behind them. TheChamber treats them as if they were still the agents and appointees ofa monarch, instead of its own representatives, and is jealous and suspi- cious of them at every turn. The system no doubt awaits for its successful operation the formation of two coherent national parties, capable oforganizing for government instead of merely for rivalry.- -Ned .431. The Course of Legislation. All propositions alike, whethermade by ministers or by private members, have to go to a specialcommittee for consideration before reaching a debate and vote byTHE GOVERNMENT OF FRANCE. 231the 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 ParliamentaryInitiative, ' and it is only after hearing the report of that Committee upon bills submitted to it that the House determineswhether particular measures shall be taken under further consideration and advanced to the special- committee stage. A vote ofemergency taken upon the introduction of a measure can, however, rescue a ministerial bill from all committee handling, anda private member's bill from the delays of the Initiative Committee.432. The Committees . The committee organization of theHouse is worthy of special remark. Every month during thesession, the members of the Chamber of Deputies are divided bylot into eleven, those of the Senate into nine, Bureaux. TheseBureaux select four monthly committees, ' one on ' Leave, ' oneon Petitions, ' one on ' Parliamentary Initiative, ' and one on' Local Interests, ' and one annual committee on the Budget, - eachBureau contributing its member or members. The Bureauxselect, moreover, all the special committees to which bills arereferred, except when the House prefers itself to elect a committee; and they themselves consider matters referred to them.433. It will be seen that this arrangement, making the composition ofthe Bureaux dependent upon lot, as it does, and providing for the monthlyreconstitution alike of the Bureaux and of the committees which theyselect, must effectually prevent the recognition or maintenance of partylines in the formation either of the Bureaux or of the committees, andseems in that way very well adapted to check the factional ardors of theChamber. But the very existence of committees and of the matter-ofcourse reference of all measures to their consideration, means that theChamber insists upon examining and sifting all proposals for itself,whether they have been introduced by the ministers or not. It means,consequently, that the leadership of the ministers is thus still furtherbroken and embarrassed. The committees will always insist upon putting some touch at least of their own handiwork upon the bills submittedto them; and even the ministers may count upon seeing their proposalspulled about and altered.- 434. The Budget Committee. All financial matters are considered by special standing committees chosen for one year; in232 THE GOVERNMENT OF FRANCE.the Chamber of Deputies by a Budget Committee composed ofthirty -three members, and in the Senate by a Finance Committeecomposed of eighteen members; and these Committees, like otherstanding committees, arrogate to themselves something like absolute domination of the financial policy of the government, withthe result of robbing financial legislation of order and consistency,and of sadly obscuring the responsibility of the ministers. Othercommittees simply consider and report; the Budget Committeeundertakes often radically to revise, sometimes altogether totransform, ministerial proposals, originating when it was meantonly to control.¹435. Government by the Chambers. Ministerial responsibilityhas rapidly degenerated in France, during the past few years, into government by the Chambers, or, worse still, government by the Chamber ofDeputies. Ministerial responsibility is compatible with ministerial leadership; and under a ministry really given leave to direct the course ofpublic policy , the Chambers judging and controlling but not directing,that policy might have dignity, consistency, and strength . But in Francethe ministers have, more and more as the years of the Republic have multiplied, been made to substitute for originative leadership submissive obedience, complete servility to the wishes, and even to the whims, of theChamber of Deputies. The extraordinary functions which have beenarbitrarily assumed by the Budget Committee simply mirror the wholepolitical situation in France. The Chamber has undertaken to govern,with or without the leadership of ministers. So capricious, so wilful hasit been in its rejection of every minister who would not at once willinglyserve its moods, so impatient indeed of all real ministerial leadership , thatalmost every public man of experience and ability in France has nowbeenin one way or another discredited by its action; and France is staggeringunder that most burdensome, that most intolerable of all forms of government, government by mass meeting, - by an inorganic popular assembly. It is this state of affairs which has once and again called forth soloud a demand for a revision of the Constitution, and which has seemedupon at least one notable occasion to create an opportunity for anotherreturn to some sort of dictatorship.436. The Administrative and Judicial Powers of the Executive.-It must not be supposed, because the life of a ministry is shortand its leadership in the houses uncertain, that it wholly lackspower while it lasts . It inherits the traditional prerogatives of the1 See the Revue des Deux Mondes for Nov. 1 , 1886, p. 226 et seq.THE GOVERNMENT OF FRANCE. 233French Executive, and they are very great. The powers of thePresident are the powers of the ministers. His power to execute and administer the laws means, according to the immemorialpractice in France, that he may not only freely interpret thelaws but may also supplement them to meet circ*mstances andcover cases which the legislature did not foresee or provide for.He may not disregard the plain principles of the law, indeed, buthe need not be restrained by its detail; and in shaping administrative arrangements, instructing officials , and developing plansto meet the requirements of public business the executive authority exercised by the ministers through the President's decreesis in most cases wholly free from the trammels of statute. TheExecutive is expected to shape the laws to the cases that arise,and to supplement them where they lack completeness. Thelaws are, accordingly, for the most part themselves without detailed provisions. They give the officers of state who are to execute them a principle by which to go rather than a body ofminute instructions . The legality of administrative action, moreover, is tested, when challenged, not by the ordinary courts oflaw, in which private rights are determined and guarded, butby special administrative tribunals in which the utmost latitudeof discretion on the part of officers of state is the principle chieflyrespected and enforced. The Executive inherits a very absolutetradition of power.437. The President's power to dispose of the armed force ' of thenation has been employed in such a way as almost to amount to a declaration of war, in some of the aggressive colonial schemes into which recentFrench ministries have allowed themselves to be drawn. There goes withthe executive power of appointment, too , an absolute power of removalfrom office, and all the vast official machinery of a centralized state isunder the hands of the ministers to use almost as they will.438. Departmental Functions. - The main duties of most of theDepartments are sufficiently indicated by their names. TheMinistry ofJustice controls 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. Thestrict differentiation of functions insisted upon in France assignsto the Ministry of War, the Ministry of Marine, and the Minis-234 THE GOVERNMENT OF FRANCE.try of the Interior respectively, the administration of military,marine, and administrative law. The Ministry of Foreign Affairscontrols the relations of France with foreign countries . TheMinistry ofthe Interior undertakes all duties not assigned to anyother executive Department. That of Finance collects , handles,disburses, and accounts for the revenues of the state. That ofWar directs all military affairs . That of Marine and the Colonieshas, added to the duty of managing the navy, the duty of actingfor the colonies as all departments in one. The Ministry of Public Instruction, Religion, and the Fine Arts organizes and overseeseducation, 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, museums, and art-exhibitions, subsidizes the theatres, exercises a censorship over the drama, superintends conservatories and schools of music and oratory, andsupervises the state manufactories of Sèvres ware and tapestry.The Ministry of Public Works is entrusted with the managementof the public highways, including the railways, and of the statemines, with the inspection of shipping and the care of seaportsand lighthouses, and with the direction of the schools of engineering and architecture. The Ministry of Agriculture is charged withthe 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 administrationof the various aids given by law to agriculture. The Ministryof Trade and Industry undertakes to provide for the interior commerce of the country the facilities afforded by special courtsof law, bourses and chambers of commerce, duly commissionedmiddle-men and factors, life- insurance companies, savings banks,and accident funds, the official examination and warranty of certain classes of manufactured goods, the policing of markets, andthe granting of patents and trade- marks; for the foreign commerce of the country, it regulates duties and imposts, offers premiums for shipbuilding and seamanship, and collects statistics .A special ' Bureau of Industrial Societies ' was added to thisDepartment in 1886. The Ministry of Posts and Telegraphs seesto the carrying and delivery of the mails, and to the telegraphicservice of the country.THE GOVERNMENT OF FRANCE. 235439. The duties of most of these ministries illustrate the rangeof function assumed by the government in France (secs. 1479,1480) more conspicuously than they illustrate the form and spiritof her political institutions. A mirror of the political life ofFrance is to be found in the organization of the Ministry of theInterior, which is more largely concerned than any other Department with the multifarious details of local government.Утеба LOCAL GOVERNMENT.440. France still preserves the administrative divisions createdby the Constituent Assembly in December, 1789. Instead of theold system of ecclesiastical dioceses, military provinces, and administrative ' generalities ' (sec. 385) , with their complexities andvarieties of political regulation and local privilege, there is asystem, above all things simple and symmetrical, of Departmentsdivided into Arrondissem*nts, Arrondissem*nts 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; arrondissem*nt, canton,and commune are only divisions of the Department, — not fractions of France, but only fractions of her Departments. Thecanton, indeed, is little more than an election district; and thearrondissem*nt is only a fifth wheel in the administration ofthe Department. The symmetry of local government is perfect.throughout . Everywhere the central government superintendsthe local elective bodies; and everywhere those bodies enjoy thesame privileges and are hedged in by the same limitations ofpower.441. The several parts of the system of local government inFrance will thus be seen to rest, not upon any historical groundwork, creating each a vital whole, with traditions of local selfgovernment handed down from an older time of freedom, but upona bureaucratic groundwork of system. If, therefore, France isnow approaching confirmed democracy and complete self- government, as there is good reason to believe she is , she is building,not upon a basis of old habit, fixed firmly in the stiff soil of wont236 THE GOVERNMENT OF FRANCE.and prejudice, but upon a basis of new habit widely separatedfrom old wont, depending upon the shifting soil of new developments of character, new aptitudes, new purposes. Her new waysrun across, not with, the grain of her historical nature. Herself- government is a-making instead of resting upon somethingalready made.442. The Department: the Prefect. The central figure ofFrench administration is the Prefect, the legal successor of theIntendant (sec. 384) . He is the agent of the central governmentin the Department. He is the recruiting officer of that district,its treasurer, its superintendent of schools, ' its chief of police, itsexecutive officer in all undertakings of importance, and the appointer of most of its subordinate officials. He fills a doublecapacity: he is the agent and appointee of the central government, and at the same time the agent of the local legislativeauthorities. He is at once member and overseer of the GeneralCouncil of his Department; and he is necessarily its agent, inasmuch as he commands, as representative of the authorities inParis, all the instrumentalities through which its purposes mustbe effected. A minister can veto any act of a Prefect, for heis the representative of any minister who needs his executive aidin the Department, but no minister can override him and actby his own direct authority. Until he is dismissed the ministermust act through him.--443. When acting as the agent of the central authorities incarrying out the provisions of general statutes or of general administrative regulations the Prefect has, of course, no choice butto obey the orders he receives from the ministers in Paris. Butwhen he acts in local matters, he may use his own discretion andcan be brought to book only by judicial process and upon complaint. It is of great consequence, therefore, that his powers inthe field of local government are so many and so important. Heprepares the budget of the Department not only but also all theother business upon which the General Council of the Department(secs. 447-452) is expected to act. His initiative determines thegreater part of what that Council does; and it can act only throughhim in getting its resolutions carried into effect . His police1 He appoints and disciplines the teachers.THE GOVERNMENT OF FRANCE. 237power extends beyond the organization and government of thepolice of the Department to the, at any rate, indirect control ofthe police organization and the police regulations of the Communes, many of which, are great cities, with elective officers oftheir own (sec. 458) . Every mayor's police appointments mustbe confirmed by him, and he alone can remove police officialsfrom office in the Communes. ' Police ' affairs, in France, moreover, cover not merely the preservation of order and the enforcement of the law, but also such important matters as those, forexample, which concern the public health . In respect of somematters of local management, too, the Prefect can act by directorders of his own, addressed to the officials of the Communes, asif to his own immediate subordinates. He can in his discretionsuspend the mayor of a Commune from office for a month's time;he can suspend also the session of a communal council (sec. 464)for a like period.444. The Prefect may take part in the proceedings of the GeneralCouncil of the Department at any time except when his accounts are beingconsidered.445. Such is the legal position of the Prefect. His actual position issomewhat different. The politics of the Republic, one of whose tendencieshas been to contribute by degrees to local self-government, is making thePrefect more and more largely the executive agent of the General Councilof his Department; and has, moreover, already made his office a partyprize. He is appointed by the Minister of the Interior and is in law first ofall and chiefly the representative of the Interior. But the other ministersalso, as has been said , act through him in many things. The result is thathis office is often emptied and filled again upon a change of ministers,change, that is, of the ruling group in the Chamber. He frequently oweshis appointment to the favorable influence of the deputies and senatorsfrom his Department with the Minister of the Interior and he is kept, byhis personal relations with them, close to local influences. He is , consequently, not the autocrat he was under Napoleon. He is, rather, thetrimmer to local opinion too often found under popular governments.a446. The Spoils System in France. — French administration in allits branches, indeed, and in all grades of its service, from the lowest tothe highest, has suffered profound corruption through the introduction ofthe fatal idea that public office may and should be used as a reward forparty or personal services. Ministers have adopted, all too readily, thedamning practice of distributing offices among their party followers as payfor party activity, and even among the friends and constituents of deputies ,238 THE GOVERNMENT OF FRANCE.in exchange for support in the Chamber. And of course, when short ofgifts to bestow, the temptation is to empty as many offices as possible ofopponents or luke- warm friends in order to have places to give away. Thispolicy is likely to be doubly fatal to good government in France becauseof the very frequent changes of ministry at present characteristic of herpolitics. (Compare secs. 426, 427.)-447. The General Council of the Department. The legislativebody of the Department is the General Council, which is made.up of representatives chosen, one from each canton, by universalsuffrage . Except during a session of the Chambers, the President of the Republic may at any time dissolve the General Councilof a Department for cause. The election of representatives to theGeneral Council, like the election of deputies, does not take placeupon days set by statute, but on days set by decree of the President. Councillors are elected for a term of six years, one- half ofthe membership of the Council being renewed every three years.In order that members of the General Council may be in factrepresentatives of at least a respectable number of the voters ofthe cantons, the law provides, as in the case of the election ofDeputies (sec. 406) , that no one shall be elected on a first ballotunless voted for on that ballot by an absolute majority in a pollof at least one-fourth of the registered voters . Attention havingbeen 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 oldercandidate is to be declared elected.448. The membership of the Council varies in the several Departments,according to the number of cantons, from seventeen to sixty- two.449. The General Council is judge of the validity of elections to itsown membership; but it is not the final judge. An appeal lies from itsdecisions to the Council of State. A seat may be contested on the initiative either of a member of the Council, the Prefect, or a constituent of themember whose rights are in question.450. There are two regular sessions of the General Councileach year. The duration of both is limited by law: for the firstto fifteen days, for the second to one month. Extra sessions ofeight days will be called by the President of the Republic at thewritten request of two- thirds of the members. If the Council inany case outsit its legal term, it may be dissolved by the Prefect;THE GOVERNMENT OF FRANCE. 239if it overstep its jurisdiction in any matter, its acts may be annulled by a decree of the President. Members are liable to penalties for non-attendance or neglect of duty. They are, however,on the other hand, paid nothing for their services .451. At the first regular session of the year the Council considersgeneral business; at the second and longer session it discusses the budgetof the department, presented by the Prefect, and audits the accounts ofthe year. At either session it may require from the Prefect or any otherchief of the departmental service full oral or, if it choose, written repliesto all questions it may have to ask with reference to the administration.452. The supervisory and regulative powers of the GeneralCouncil are of considerable importance; but its originating powersare of the most restricted kind. It has the right to appropriatecertain moneys for the expenses of local government, but it hasnot the right to tax for any purpose. The amount and the sourceof the money it is to use are determined by the Chambers inParis . Even such narrowed acts of appropriation as it can passhave to be confirmed by presidential decree. Its chief functionsare directory, not originative . It sees to the renting and maintenance of the buildings needed for its own use, for the use of thePrefect and his subordinates, for the use of the public schools,and for the use of the local courts; it votes the pay of the police(gendarmerie) of the Department; provides for the cost of printing the election lists; supervises the administration of the roads,railroads, and public works of the Department; oversees the management of lunatic asylums and the relief of the poor. Mostimportant of all, it apportions among the several arrondissem*ntsthe direct taxes annually voted by the Chambers.453. The Departmental Commission. - During the intervals betweenits sessions, the General Council is represented in local administration bya committee of its own members called the Departmental Commission,which it elects to counsel and oversee the Prefect. The powers of thisCommission, however, are merely advisory.454. Central Control. - The most noticeable feature of thissystem is the tutelage in which local bodies and the individualcitizen himself are kept . Fines compel the members of the General Council to do their work, and then every step of that work240 THE GOVERNMENT OF FRANCE.is liable to be revised by the central administration. Irregularities in the election of a member may be brought to the attentionof the General Council by the Prefect, as well as by its ownmembers or by petition from the constituency affected . If theCouncil overstep the limits of its powers, it is checked by decree,and not by such a challenging of its acts in the courts by thepersons affected as, in English or American practice, strengthensliberty by making the individual alert to assert the law on hisown behalf, instead of trusting inertly to the government to keepall things in order. Even expression of opinion on the part ofthe General Council is restricted. It may express its views onany matter affecting local or general interests, ' if only it neverexpress a wish which has a political character. '--455. The Arrondissem*nt is the electoral district for the Chamber of Deputies, the members of the Chamber of Deputies beingelected, as we have seen, not ‘ at large, ' for the whole Department,but by Arrondissem*nts, not by scrutin de liste, that is, but byscrutin d'arrondissem*nt (sec. 404) . It also serves as a judicialdistrict and as the province of an arrondissem*ntal Council. TheCouncil of the Arrondissem*nt (conseil d'arrondissem*nt) , electedfrom the cantons, like the General Council of the Department,has no more important function than that of subdividing amongthe communes the quota of taxes charged to the Arrondissem*ntby the General Council. For the rest, it merely gives advice toadministrative officers appointed by the ministers in Paris . Itsdecisions are largely controlled by the Prefect, and may be annulled by the President of the Republic.456. The Canton is the electoral district from which membersare chosen to the General Council and the Council of the Arrondissem*nt; it marks the jurisdiction of the Justice of the Peace;it is a muster district for the army, and serves as a territorial unitof organization for registration and for the departmental care ofroads; but it has no administrative organization of its own. Itis a mere region of convenient size for electoral and like purposes.457. The Commune, unlike the arrondissem*nt and canton, isas vital an organism as the Department. All towns are communes; but there is , of course, a much larger number of ruralthan of town communes.THE GOVERNMENT OF FRANCE. 241458. There are 36,170 Communes, most of which have less than 1500inhabitants and many of which have less than 500. One hundred andseventeen have more than 20,000 . Every city of France, except Paris andLyons, is organized as a Commune.459. The general rule of French administration is centralization, the direct representation of the central authority, throughappointed officers, in every grade of local government, and theultimate dependence of all bodies and officers upon the ministersin Paris. In one particular this rule is departed from in theCommune. The chief executive officer of the Commune, themayor, is elected, not appointed. He is chosen by the MunicipalCouncil from among its own members, and is given one or moreassistants elected in the same way.460. Downto 1874 the mayors of the more populous Communes were appointed by the authorities in Paris, the mayors of the smaller Communesby the Prefects. Between 1831 and 1852 the choice of the appointingpower was confined to the members of the Municipal Councils; between1852 and 1874 the choice might be made outside those bodies . From 1874to 1882 the smaller Communes elected their mayors, indirectly as now.Since 1882 all mayors have been elected.461. The Communal Magistracy. The mayor and his assistants do not constitute an executive board: the mayor's assistantsare not his colleagues. He is head of the communal government:they have their duties assigned to them by him. The mayor isresponsible, not to the Council which elects him, but to the central administration and its departmental representative, the Prefect. Once elected, he becomes the direct representative of theMinister of the Interior. If he will not do the things which thelaws demand of him in this capacity, the Prefect may delegatesome one else to do them, or even do them himself instead .cause, both the mayor and his assistants may be suspended, bythe Prefect for one month, by the Minister of the Interior forthree months, and all their acts are liable to be set aside eitherby Prefect or minister. They may even be removed by theExecutive.For462. In case of a removal it is the duty of the Municipal Council to fillthe vacancies, and to fill them with other men; for removal renders themayor or his assistants ineligible for one year.242 THE GOVERNMENT OF FRANCE.463. One of the duties of the mayor is to appoint the police force andother subordinate officers of the Commune; but in Communes of overforty thousand inhabitants the mayor's composition of the police forcemust be ratified by decree, and in other Communes all his appointmentsmust be confirmed by the Prefect.- 464. The Municipal Council. -There is in every Commune aMunicipal Council (of from ten to thirty-six members, accordingto the size of the commune) which has, besides its privilege ofelecting the mayor and his assistants, pretty much the same placein the government of the Commune that the General Council hasin the government of the Department; and, in the main, a likedependence upon the approval of the central administration .Unlike the General Council, the Municipal Council is liable tobe suspended for one month by the Prefect; like the GeneralCouncil, it may be dissolved by decree of the President passedin the Council of Ministers . It holds four regular sessions eachyear, one of which it devotes to the consideration of the municipal budget, which is presented by the mayor. Its financial session may continue six weeks; none of its other sessions may lastmore than fourteen days. The mayor acts as its president, except when his own accounts are under consideration .465. Neither the Municipal Council nor the Council of the Arrondissem*nt is judge of the validity of the elections of its members. Contestedelection cases are heard by the Prefectural Council ( sec . 469) .466. Until 1831 the Municipal Council was chosen by the Prefect from a list of qualified persons made up in the Commune. Between 1831 and1848 its members were elected by a restricted suffrage. Since 1848 theyhave been elected by universal suffrage.467. In case of a dissolution of the Municipal Council, its place may betaken, for the oversight of current necessary matters, by a delegation offrom three to seven members appointed by the President of the Republicto act till another election can be had. This delegation cannot, however,take upon itself more than the merely directory powers of the Council.468. Administrative Courts: the Council of State. So thoroughis the differentiation of functions in France that actions at lawarising out of the conduct of administration are instituted, not inthe regular law courts connected with the Ministry of Justice,but in special administrative courts connected with the Ministryof the Interior. French thought, inherited from days of un-THE GOVERNMENT OF FRANCE. 243bounded royal prerogative, makes sharp separation betweenPublic Law, which concerns the action of the government, andPrivate Law, which concerns the relations of individuals to oneanother. The ordinary courts will determine the rights of anindividual when they concern the action of another individual;but the special courts of the administration must determine thequestions involved in any challenge of official action, — in anychallenge of the public power. (Comp. sec. 437. ) The highestof these courts is the Council of State, which is composed of theministers, and of various high administrative officers of the permanent service. It is the court of last resort on administrativequestions. It is also charged with the duty of giving advice tothe Chambers or to the government on all questions affecting administration that may be referred to it .469. The Prefectural Council. - Below the Council of Stateare the Prefectural Council, a Court of Revision , a SuperiorCouncil of Public Instruction, and a Court of Audit. These arenot subordinate to each other: each is directly subordinate to theCouncil of State. The Prefectural Council is directly associatedwith the Prefect and is the most important of them.It has,amongst other weighty functions, that of determining the validityof elections to the Council of the Arrondissem*nt and to theMunicipal Council. For the rest, it has jurisdiction over all administrative questions, and over all conflicts between administrative authority and private rights. Its processes of trial andadjudication are briefer and less expensive than those of theordinary law courts. In almost all cases an appeal lies to theCouncil of State.470. The Prefect is the legal representative of the government in casesbrought before the Prefectural Council; but that court is not at all underhis dominance. It is composed of permanent judges, one of whom, atleast, is usually of long administrative experience. Its members areappointed, and, for cause, are removable, by the central administration .471. Each minister is himself a judge of first instance in cases whoseconsideration is not otherwise provided for, an appeal almost alwayslying, however, to the Council of State. Prefects and mayors are, inlike manner, judges of first instance in certain small cases.244 THE GOVERNMENT OF FRANCE .THE ADMINISTRATION OF JUSTICE.—— 472. Ordinary Courts of Justice. The supreme court of Franceis the Cassation Court (the Court, that is, of reversals or appeals)which sits at Paris. Next below it in rank are twenty-six Courtsof Appeal, the jurisdiction of each of which extends over severalDepartments. These hear cases brought up from the courts offirst instance which sit in the capital towns of the arrondissem*nts. These last consider cases from the Justices of the Peace,who hold court for the adjudication of small cases in the cantons .By decree of the President, passed in the Council of Ministers,the Senate may be constituted a special court for the consideration of questions seeming to involve the safety of the state; andsuch questions may be removed by the same authority from theordinary courts.473. The appointment of all judges rests with the President,or, rather, with the Minister of Justice; and the tenure of thejudicial office, except in the case of Justices of the Peace, isduring good behavior. In the case of Justices of the Peace,the President has power to remove.-- 474. Jury Courts . In France, the ordinary civil courts arewithout juries; the judges decide all questions of fact as wellas all questions of law. There are, however, special jury courts(cours d'assises) constituted four times a year in each Departmentfor the trial of crimes, and of political and press offences; andin these the jury is sole judge of the guilt or innocence of theaccused; the judges determine the punishment.475. Tribunal of Conflicts . -- Between the two sets of courts,the administrative and the ordinary, there stands a Tribunal ofConflicts, whose province it is to determine to which jurisdiction, the administrative or the ordinary, any case belongs whoseproper destination, or forum, is in dispute. This Tribunal consists of the Privy Seal as president, of three State Councillorschosen by their colleagues, and of three members of the Cassation Court selected, in like manner, by their fellow-judges,besides two members chosen by those already mentioned.THE GOVERNMENT OF FRANCE. 245SOME REPRESENTATIVE AUTHORITIES.Aucoc, " Conférences sur l'administration et le droit administratif, ”3 vols., Paris, 1882.Bastard D'Estang, " Les Parlements de France. "Beaulieu, Leroy, " Administration locale en France et en Angleterre. "Benoist, Revue des Deux Mondes, July, 1895.66 Block, Dictionnaire de l'administration française, " Paris, 1887, andsubsequent annual supplements.Bodley, J. E. C., “ France, ” 2 vols. , London and N.Y., 1898.Borgeaud, Charles, " Adoption and Amendment of Constitutions inEurope and America. " Trans. from the French by C. D. Hazenaud J. M. Vincent, N.Y., 1895.Boutmy, Émile, " Studies in Constitutional Law: France - England —United States." Trans. from the French by E. M. Dicey, London,1891.Bozérian, “ Étude sur la revision de la constitution . "66 Burgess, J. W., Political Science and Constitutional Law, " 2 vols.,Boston, 1891 .Chéruel, " Dictionnaire historique des Institutions, Mours, et Coutumesde la France," 2 vols. , 6 ed. , Paris, 1884.Currier, C. F. A., " Constitutional and Organic Laws of France, 1875-'89," Philadelphia ( Am. Acad. Pol. Sci. ) , 1893.Demombynes, "Les Constitutions Européennes, " 2 vols. , Paris, 1883 .Vol. II., p. 1 et seq.Dickinson, Reginald, " Summary of the Constitution and Procedure ofForeign Parliaments, " 2d ed.Ducrocq, " Cours de droit administratif, " 2 vols . , Paris, 1881 .Dupriez, L., " Les Ministres dans les principaux Pays d'Europe etd'Amerique, " 2 vols. , Paris, 1892.66 Edwards, M. Betham, France To- Day, " 2 vols., London, 1892-'94.Ferron, H. de, " Institutions municipales et provinciales comparées, "Paris, 1884.Goodnow, Frank J. , " Comparative Administrative Law, " 2 vols . , N. Y.,1893.Haas, C. P. M., " Administration de la France, " 4 vols. , 2 ed. , Paris,1861.Kitchin, G. W., " History of France, " 3 vols . , Oxford, 1881–85.Laferrière, E., " Traité de la Juridiction administrative et des recourscontentieux, " 2 vols . , Paris, 1887.Lebon, André,66 Das Staatsrecht der französischen Republik, " in Mar-246 THE GOVERNMENT OF FRANCE.quardsen's "Handbuch des Oeffentlichen Rechts der Gegenwart. ”Freiburg in B., 1886; " Modern France " (Story of the NationsSeries) , London and N.Y., 1896; and (with P. Pelet) " France AsIt Is, " London, 1888.Lowell, A. Lawrence, " Governments and Parties in Continental Europe, "2 vols. , Boston, 1896.Meier, E. von, " Das Verwaltungsrecht, " in Holtzendorff's “ Encyklopädieder Rechtswissenschaft, " Sys. Theil, pp. 1220, et seq. , ed. 1890.Naquet, A., " The French Electoral System, " N. A. Rev., vol. 155.Sarwey, O. von, " Allgemeines Verwaltungsrecht " in Marquardsen,pp 110-112. .Scherer, Edmond, " La Democratie et la France. "Shaw, Albert, " Municipal Government in Continental Europe, " N.Y.,1895.Stephen, Sir James, " Lectures on the History of France," 2 vols . , 3 ed. ,London, 1857.Tocqueville, Alexis de, " L'Ancien Regime et la Révolution " and"Recollections " (trans. London, 1896) .Villeneuve, M. de la Bigne de, " Elements de Droit constitutionel français, " Paris, 1892.VII.THE GOVERNMENTS OF GERMANY.--476. The Feudalization of Germany was in some points stronglycontrasted with the feudalization of France. There was in Germany no Romanized subject population such as existed in Gaul,with habits which should enter like a leaven into the polity oftheir conquerors. Beyond the Rhine all were of one generalkin, all bred to the same general customs. What was newthere was the great Frankish kingship of Merowingian andCarolingian, the new size and potency of the regal power bredamidst the readjustments of conquering migration by the dominant Franks. For the rest, there was at first the old groupingabout elective or hereditary princes, the old tribal individualitiesof custom, the old organization into separate, semi - independent,self- governing communities. Feudalism came, not so muchthrough fresh gifts of land and novel growths of privilege basedupon such fresh gifts , not so much through ' benefice ' and ' commendation ' (secs. 305–308, 310) , as through the official organization of the Frankish monarchy.477. Official System of the Frankish Monarchy: the Grafen. -In order to exercise their kingly powers the more effectually, theFrankish monarchs adopted the natural plan, for which there wasRoman precedent, of delegating their functions to officers commissioned to act as their representatives in various districts oftheir extensive domains. There does not seem to have been anysymmetrical division of the territory into districts to fit the officialsystem. Here and there there were counts (Grafen) , the king'svicegerents in the exercise of the financial, judicial, and militaryprerogatives of overlordship; but the limits of their jurisdiction.were not always sharply defined . There were, for one thing,247248 THE GOVERNMENTS OF GERMANY.many exemptions from their authority within the general districts allotted them. There were the dignity and pretensionsof provincial princes to be respected; more important still, therewere the claims of the great landowners to a special jurisdictionand independent lordship of their own to be regarded. As amatter of policy such claims were generally allowed. Thedemesnes of the greater landowners were cut out from the administrative territory of the Graf and given separate politicalfunctions. Barons, such as we have seen in France, localautocrats with law courts and a petty sovereignty of their own,were freely created. The king apparently could not deny themthe ' immunities ' they demanded.― -478. The Magistracy of Office and the Magistracy of Proprietorship. -There thus grew up, side by side, a double magistracya magistracy of office and a magistracy of proprietorship . TheGraf ruled by virtue of his office; the baron by virtue of hislanded possessions: there were lords by privilege (Immunitätsherren), and lords by commission. As time went on the two setsof magnates drew nearer and nearer to the possession of a common character through an interchange of qualities. The officeof Graf tended more and more to become hereditary and to connect itself with the ownership of large estates. Heredity oftitle and prerogative was the almost irresistible fashion of theage: the men of greatest individual consequence, besides, -themen who were fit because of their individual weight to be delegated to exercise the royal authority, were commonly the menof large properties. Either there went, therefore, along with thegrafship, gifts of land, or else men already sufficiently endowedwith lands were given the grafship: and as the office connecteditself with proprietorship it took from proprietorship its invariable quality of heredity. This was the double process: Grafsbecame hereditary territorial lords; and hereditary territoriallords acquired either the grafship itself or powers quite as great.479. Hereditary Chiefs. Add to this hierarchy the moreancient princes of the tribes, and the tale of greater lords is complete. These princes were, by traditional title at least, rulersof the once self-governing communities which Frankish ascendency had in the days of conquest united under a common author----THE GOVERNMENTS OF GERMANY. 249"ity. In many cases, no doubt, they retained a vital local sway.They were intermediate, in the new political order, between theking and the barons.-480. Full Development of Territorial Sovereignty. By thethirteenth century German feudalization was complete. Princes(dukes), Grafs, and barons had all alike become lords within.their own territories (Landesherren) . Bishops and abbots, too,as in France, had entered the competition for power and becomethemselves Grafs and barons . That territorial sovereignty, thatprivate ownership of political authority which is the distinguishing mark of feudalism, and which we have seen so fully developed in France, is present in as full development here inGermany also. But the elements of the development are verydifferent 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 andother authority in the king's hands, to the undermining and finaloverthrow of baronial sovereignty (secs. 380, 385) . In Germany,onthe contrary, the royal representatives, appointed while feudalism was taking shape, themselves entered and strengthened thebaronage, quitting their dependent functions as officials for theindependent privileges of territorial lords.-He481. The Markgraf. One office especially fostered feudal independence in Germany. Outside the hierarchy I have described,and standing in special relations with the king, was the Markgraf, the Grafof the Mark or border, set to defend the kingdomagainst inroads by hostile peoples . He was of course chosenchiefly because of his capacity in war, and was of the most imperative, masterful soldier breed of the times. To him, too, werenecessarily vouchsafed from the first extraordinary powers.was made virtual dictator in the unsettled, ill - ordered border district which he was appointed to hold against foreign attack; andhe was freely given all the territory he could conquer and bringunder the nominal authority of the king. It was thus that theMark Brandenburg spread itself out to the northeast, to becomeat last a great kingdom, and that the Ostmark, established byCharles the Great as a barrier against the Hungarians, increasedtill it became the great state of Austria. The Markgraf was not250 THE GOVERNMENTS OF GERMANY.long in becoming virtually a ruler in his own right, little disturbed by the nominal suzerainty of a distant monarch, and possessed by fast hereditary right of the titles and powers whichwould one day make of him a veritable king.-482. The Empire. — Charles the Great set for his successorsthe example of a wide rule and a Roman title. But for manya long age it seemed as if he had left behind him nothing but atradition and a scheme of power which no man was able to takeup. His great empire fell to pieces, never to be put togetheragain, except as it seemed to rise once more for a little space inthe days of Charles V. Even the greater fragments of it fellapart beyond the Rhine, shattered by the disintegrating forcesof feudalism. But the name and shadow of the imperial powerpersisted from age to age with a strange vitality. First a lineof Saxon princes, then men of the Franconian house, after themthe masterful Hohenstaufan essayed the office Charles had madegreat, wielding such authority as they could as power came andwent amidst the shifting scene of German politics. Finally thesuccession fell to the house of Habsburg, who were building averitable kingdom together upon the southern skirts of Germany,where the Ostmark had grown to be Austria. As their strengthincreased, their presidency amidst the German states became anunmistakable power of command, and Germany had at last aleader, if not a master.483. The Imperial Cities . While the imperial power languished a notable thing happened. Germany gave birth to greatfree cities, set like independent states in the midst of their weakneighbors. The cities of the Empire had, as feudalism developed, fallen into its order in two classes . Some of them heldtheir privileges of the Emperor himself, were his immediate vassals; others were subordinated to some feudal lord and were subjects of the Empire only through him. The position of thoseimmediately dependent upon the Emperor was much more advantageous than the position of those who had lesser and nearermasters. The imperial supervision was apt to be much lessexacting than the overlordship of princes who, having less wideinterests to care for than those which busied the Emperor, couldrender their power greater by concentration. They were alwaysTHE GOVERNMENTS OF GERMANY. 251near at hand and jealous of any movement of independence on thepart of the towns within their domain; the Emperor, on the otherhand, was often far away and never by possibility so watchful.He was represented always by some deputy; but the presenceof this officer did not greatly curtail municipal self-government.In the thirteenth century even this degree of control was gotrid of at the suit of some of the cities. They were allowed tobecome ' free ' imperial cities, bound to the Emperor only bysworn allegiance, not by any bonds of actual government. Thenext step in the acknowledgment of their independence and importance was their admission to representation in the Diet of theEmpire, --and such recognition was not long delayed . The rôleof these great free cities in imperial affairs became one of themost important of the many independent rôles played on theconfused stage of that troubled time. Lübeck, Hamburg, andBremen retain to this day a certain privilege of position as freecities in the German Empire ( secs. 497, 500) .484. The Swiss Confederation. Almost at the very time thatthe Habsburgs first won the imperial crown and acquired the duchy ofAustria, some of their Swiss dependencies broke away from them, andestablished an independence never since permanently broken . Schwyz,Uri, and Unterwalden, the sturdy little mountain communities groupedabout the southern end of quiet Lucerne, with whose struggle for freedomthe glorious story of the Swiss Confederation begins, contained some partof the estates of the Counts of Habsburg, whose hereditary domainstouched the other end of Lucerne, and stretched wide to the north aboutthe further shore of Lake Geneva, and southward again on the West. Theregion of the Alps contained the notable imperial cities of Zürich, Berne,Basle, and Schaffhausen; and Schwyz, Uri, and Unterwalden claimed to be immediate vassals of the Emperor, as these cities were. The Countsof Habsburg, in despite of this claim, sought to reduce them to submissionto themselves. The result was a long struggle in which the three littlecantons, at first joined only by their neighbor canton, Lucerne, but afterwards by Zürich, Glarus, Zug, and Berne, were eventually completelyvictorious. By the formation of this famous league of free cantons andcities, at first known as the " Old League of High Germany, " but ultimately as Switzerland ( the land of Schwyz) , there emerged from theGerman Empire one of the most interesting states known to history. Itmay be said to have been the offspring of the disintegrating forces of theEmpire, a living proof of its incoherence. In the next chapter we shallconsider its political development with the special attention which it merits.252 THE GOVERNMENTS OF GERMANY.-485. Austria's Rival, Prussia. While Austria's power was onthe make a formidable rival had grown up in the north, out ofthe North Mark established in the tenth century as the Empire'sbarrier against the Wends. Men of energy and daring hadsteadily pushed forward the eastern boundaries of the Mark untilit had become a great territory, the Mark Brandenburg. In thefifteenth century the markgrafship fell into the hands of a racemore capable than the Habsburgs, the Hohenzollern of Nürnberg.Under them it waxed greater yet alike in territory and in organized power: took in Prussia, the district from which it was to getit* later name, and got ready for the great rôle it was to play inthe seventeenth, eighteenth, and nineteenth centuries. In 1640Frederic William, the Great Elector ( 1640-1688) , came upon thestage, to make his power a determining element in the politics ofEurope. His son was Frederic, the first king of Prussia. '486. Frederic the Great. - Frederic, the first king of Prussia,governed from 1688 to 1713. His son, Frederic William I.(1713-1740) , rounded out Brandenburg's possessions and hoardedthe money and prepared the army with which his son, Fredericthe Great (1740-1786) , was to complete the greatness of Prussia.The great Frederic took Silesia from Austria, and then, joiningin the heartless and scandalous partition of Poland in 1772, filledup the gap between Brandenburg and East Prussia with WestPrussia and the Netze district, territory already thoroughly German. The second and third partitions of friendless Poland in1793 and 1795 added to Prussia the districts now known as Southand East Prussia.Prussia was at last ready for her final rivalry with Austria forthe leadership of Germany. But first there was to be the greatstorm of the Napoleonic wars, which was to sweep away so muchthat was old in German political arrangements, and create theproper atmospheric conditions for German nationality.487. Napoleon: the Confederacy of the Rhine. One of theearliest acts of Napoleon in his contest with Austria and Prussiawas to isolate these two great German states by thrusting betweenthem a barrier of smaller German states attached to the Frenchinterest. So little coherent was Germany, so little had the Empire made of the Germans a single nation, that Napoleon wasTHE GOVERNMENTS OF GERMANY. 253able to detach from all alliance with either Austria or Prussiaevery one of the German states except Brunswick and the electorate of Hesse. Ofthese the chief were the kingdoms of Bavariaand Württemberg and the grand-duchy of Baden. Napoleonorganized out of these allies the so-called ' Confederacy of theRhine, ' of which he constituted himself ' Protector, ' and whichlasted from 1806 till 1813.488. The year 1806 had marked also the formal end of the'Holy Roman Empire ' over which the Habsburgs had so longpresided . The eighteenth century had witnessed a notable decline in their power; the sweeping conquests of Napoleon putthem at his mercy; and in 1806 Francis of Austria was forced to abdicate and forever renounce the imperial office . There was nomore to be a German Empire till Prussia should draw one abouther, and Austria be once for all ousted from her place of leadership in Germany.489. The German Confederation (1815-1866) . Despite theease with which he at first divided Germany in order to conquerit, Napoleon discovered at last that he had himself aroused therea national feeling which was to cast him out and ruin him. In1813 Germany rose, the Confederacy of the Rhine went to pieces,and all Napoleon's plans were undone. He had done Germanythe inestimable service of making her patriotic. The Congressof Vienna, which met at the close of the Napoleonic wars torecompose Europe, could not revivify the German Empire: thathad been dead for some time before Napoleon forced a windingup of its affairs. But Germany was not to remain disintegrate.Theyear 1815 witnessed the formation of a new union of the German states, the German Confederation, which, loose as it seemed,held them more closely together than they had been held for manygenerations. Austria was the president of the Confederation.The organ of government was a Diet of ambassadors from thethirty-nine component states (kingdoms, duchies, cities, principalities) authorized to mediate between the states in all mattersof common concern; and the Confederation maintained an armyof thirty thousand men. The arrangement was little enough likenational union: the large states had a preponderant representationin the Diet, Austria dominating all; and each state, whether great254 THE GOVERNMENTS OF GERMANY.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 oneof the Confederates or the interests of the Confederation. Butthere was sufficient cohesion to keep the states together whileGerman national feeling grew, and while the political revolutionsof the century (1830 and 1848 ) liberalized political institutions.490. Period of Constitutional Reform. In 1848 most of theGerman states, except Prussia, granted to their people constitutional government. In the same year a ' German NationalParliament ' met at Frankfort (the seat of the Diet of the Confederation) and attempted to formulate a plan for more perfectunion under the leadership of Prussia; but its leaders proposedmuch more than was possible, the time was not yet ripe, and theattempt failed. Still earlier, in 1833, Prussia had led in the formation of a ‘ Customs Union ' ( Zollverein ) between herself and all ¹the states of the Confederation except Austria, which laid a freetrade basis for those subsequent political arrangements from whichalso Austria was to be excluded . In 1850 Prussia received fromthe hands of her king the forms, at least, of a liberal government, with parliamentary institutions; and these concessions,though at first largely make-believe, served eventually as thebasis for more substantial popular liberties .491. The North German Confederation dad (1867-1871 ) . Finally,in 1866, came the open breach between Prussia and Austria.The result was a six weeks' war in which Austria was completelydefeated and humiliated. The Confederation of 1815 fell topieces; Prussia drew about her the Protestant states of NorthernGermany in a ' North German Confederation '; the middle states,Bavaria, Württemberg, Baden, etc. , held off for a while to themselves; and Austria found herself finally excluded from Germanpolitical arrangements .492. Austria out of Germany. - Since then Austria, originallypredominantly German, has devoted herself to the task of amalgamating the various nationalities of Southeast Europe under herhegemony, and so has become in large part a non- German state.Prussia has become the head and front of Germany, in her stead.1 The Union did not at first include this ' all, ' but it did eventually.THE GOVERNMENTS OF GERMANY. 255Meantime Prussia has grown more than one-fifth in territory.The rearrangement at Vienna in 1815 gave her Swedish Pommerania and the northern half of Saxony; the war of 1866 confirmed her in the possession of Schleswig- Holstein, Hannover,Hesse- Cassel, Hesse-Nassau, and Frankfort.493. The German Empire -. The finishing impulse was givento the new processes of union by the Franco- Prussian war of1870-1871. Prussia's brilliant successes in that contest, won, asit seemed, in the interest of German patriotism against Frenchinsolence, broke the coldness of the middle states towards theirgreat northern neighbor; they joined the rest of Germany; andthe German Empire was formed (Palace of Versailles, January18, 1871) .Jues.GOVERNMENT OF THE EMPIRE.-494. Austria and Germany: Character of the German Empire.When he ceased to be Emperor of the Holy Roman Empire(1806; sec. 488) , Francis I. still remained Emperor of Austria.He had assumed that title in 1804; and from that day to thisthere has been in full form, what there had long been in reality,an Austrian Empire. In 1871 there arose by its side a newGerman Empire, but the two empires are thoroughly unlike oneanother. The Austrian Empire, though wearing the form of adual monarchy as Austria-Hungary, is composed of the hereditarypossessions of the House of Habsburg; the German Empire, onthe other hand, is a federal state composed of four kingdoms, sixgrand-duchies, five duchies, seven principalities, three free cities ,and the imperial domain of Alsace- Lorraine, these lands beingunited in a great ' corporation of public law ' under the hereditarypresidency of the king of Prussia. Its Emperor is its president,not its monarch.495. The four kingdoms are Prussia, Bavaria, Saxony, and Württemberg; the grand- duchies , Baden, Hesse, Mecklenburg- Schwerin, SaxeWeimar, Oldenburg, and Mecklenburg- Strelitz; the duchies, Brunswick,Saxe-Meiningen, Anhalt, Saxe- Coburg, and Saxe-Altenburg; the principalities, Waldeck, Lippe, Schwarzburg- Rudolstadt, Schwarzburg- Sondershausen, Reuss- Schleiz, Schaumburg-Lippe, and Reuss-Greiz; the freecities, Hamburg, Lübeck, and Bremen.256 THE GOVERNMENTS OF GERMANY.496. The Central German States and the Empire. ―- The firststep towards the present union was taken in 1870, when Baden,Bavaria, and Württemberg, fearing that the object of NapoleonIII. was to conquer the central German states or renew the Confederation of the Rhine, decisively espoused the side of Prussiaand the North German Confederation . While the siege of Pariswas in progress these three states sent delegates to King Williamat Versailles and formally united themselves with their northerncompatriots: the North German Confederation became the German Confederation, with King William as president. Almostimmediately, thereafter, the influences of the time carried theConfederates a step farther: at the suggestion of the king ofBavaria, the president- king was crowned Emperor, and the German Confederation became the German Empire.¹497. The Character of the Empire. These changes of membership and of title did not, however, change the character or, atfirst, the constitution of the union . It remained a federal state,and the king of Prussia was still its president only; he was notit* monarch. Its make-up and powers were not radically altered.Prussia, indeed, was very great: in territory more than threetimes as large as all the other states of the union put together,her population three- fifths that of all Germany; and the king ofPrussia had other means of mastery than those afforded by thelaw. But as Emperor he occupies not an hereditary throne, butonly an hereditary office. Sovereignty does not reside in him,but " in the union of German federal princes and the free cities. "He is the chief officer of a great political corporation , whose object it is to " form an eternal union for the protection of the realmand the care of the welfare of the German people. "498. The Emperor. Still his constitutional prerogatives areof the most eminent kind. Unlike other presidents, he is irresponsible: he cannot be removed, his office belonging inalienablyto the throne of Prussia, whether its occupant be king or regentonly. He summons, opens, adjourns, and closes the two Housesof the federal legislature, the Bundesrath and the Reichstag, thelatter of which he can also, with the consent of the Bundesrath,dissolve. He appoints, and may at his pleasure remove, the Im1 The present constitution of the Empire bears date April 16 , 1871 .THE GOVERNMENTS OF GERMANY. 257perial Chancellor, who is both the vital centre of all imperialadministration and the chairman of the Bundesrath; and heappoints also, under the countersignature of the Chancellor, allminor officers of the imperial service, whom, with a like coöperation of the Chancellor, he may also dismiss. He controls theforeign affairs of the Empire and commands its vast militaryforces; and in this latter capacity, of commander- in- chief of theimperial army, it rests with him, acting at the suggestion of theBundesrath, to coerce into obedience such states of the Empireas may at any time wilfully and pertinaciously neglect to fulfiltheir federal duties. He has, in brief, to the fullest extent, boththe executive and the representative functions now characteristicof the head of a powerful constitutional state. There are distinctlimits to his power as Emperor, limits which mark and emphasizethe federal character of the Empire and make of it a state governed by law, not by prerogative; but those limits neverthelesslie abundantly wide apart. Adding, as he does, to his powers ashereditary president of the Empire his commanding privilegesas king of Prussia and, as king of Prussia, the dominant memberof the Union, he possesses no slight claim to be regarded as themost powerful ruler of our time. (Compare secs . 415, 418, 423,746, 761, 775, 796, 813, 823, 860, 889, 1329, 1381, 1382. )499. Sovereignty of the Empire in Legislation . So complete,so unlike that of a mere confederation, is the present union ofthe German states that the sovereign, legislative power of theEmpire is theoretically unlimited: " it can by means of constitutional amendment set aside the bounds placed by the constitutionbetween its sphere and that of the individual states, that is, alterthem without the consent of the states; it can also withdraw fromthe 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 sufferance of the Empire, only by virtueof its will. " Amendments of the constitution are not submittedeither to the people or to the governments of the states: nor arethey passed by any special or peculiar procedure, as in France.(sec. 411) . They are originated and acted upon as ordinary-1 Laband, Das Staatsrecht des deutchen Reiches (Marquardsen's Hand- buch) , p. 22.258 THE GOVERNMENTS OF GERMANY.livelaws would be. The only limitations put upon their passage are,first, that fourteen negative votes in the Bundesrath will defeata proposed amendment, and, second, that no state can be deprivedof any right guaranteed to it by the constitution, without its own.consent. From the first the legislative power of the Empire hascovered the entire field of the law of contracts, of commercial law,and of criminal law; and by an amendment of December 20,1873, it was extended to the whole field of civil law as well. Forsome time it did not exercise its power over the whole domain ofthese great subjects, but it has now enacted, besides full codesof commercial and criminal law, an exhaustive civil code whichhas brought practically all of private law under the statutes ofthe imperial government.500. The Bundesrath: its Composition and Character. Thecentral and characteristic organ of the Empire is the Bundesrath,the Federal Council, which is, alike in make-up and function,the lineal successor of the Diet of the older Confederation. Inform, in theory, and indeed in fact, the Bundesrath is a body ofambassadors. Its members represent the governments of thestates from which they come, and are accredited to the Emperoras diplomatic agents, plenipotentiary charges d'affaires, to whomhe must extend the same protection that is extended to the likerepresentatives of foreign states. It is a fundamental conceptionof the German constitution that " the body of German sovereignstogether with the senates of the three free cities, considered as aunit, tanquam unum corpus, -is the repository of imperialsovereignty "; and the Bundesrath is the organ of this body.It is therefore the organ through which the sovereignty of theEmpire is expressed . The Emperor does not exercise sovereignty:he only shares it as king of Prussia, so far as the Empire is concerned, and takes part in its exercise only through the Prussianmembers of the Bundesrath. It follows, of course, from this principle that the members of the Bundesrath are only the agents oftheir governments, and act under instructions from them, makingregular reports of the proceedings of the Bundesrath to their homeadministrations. The votes of a state are valid, whether cast byher representatives in accordance with their instructions or not;-1 Laband, p. 40.THE GOVERNMENTS OF GERMANY. 259but the delegates are responsible for every breach of instructionsto their home authorities. In practice they are generally themselves members of the governments they represent, entrusted alsowith high administrative functions at home, and representingtheir governments in the local legislative bodies of their own.states, as well as in the Bundesrath. The Bundesrath is thusused, as it was intended to be, and as it was used under the somewhat looser forms of the earlier Confederation, as a body of consultation and guidance, a larger sort of imperial cabinet, in whichthe responsible ministers of the several states draw together todetermine all questions of general interest, whether they affectthe making or the administration of the laws.501. Representation --- of the States in the Bundesrath . Thestates of the Empire are unequally represented, according totheir size. Prussia has seventeen votes; Bavaria six; Saxonyand Württemberg four each; Baden and Hesse each three;Mecklenburg- Schwerin and Brunswick each two; the otherseventeen states one apiece. The votes of each state which isentitled 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 haveher full number of representatives present.502. Members are sent and withdrawn at the pleasure of their respective governments, like the responsible agents they are; and their constantresponsibility makes formal instruction as to their votes upon particularmeasures for the most part unnecessary. The smaller states have foundthe duty of maintaining representatives at times very onerous; and, inasmuch as it is not required by law that their delegates should be chosenfrom among their own citizens, it has become a common practice for themto serve economy and their own convenience by combining to maintainjoint representatives. Groups of them combine, and each group delegates their powers to a single person, who is authorized to represent themseverally. Since 1880, however, the session of the Bundesrath has beendivided into two periods, in one of which the more important mattersof the year are considered; and during this part of the session each stateis required to vote, if it votes at all , through its own separate delegate.During the remainder of the session routine matters are disposed of andjoint representation is permitted.503. The significance of the constitutional provision that amendmentsto the constitution may not pass if there be fourteen negative votes cast in the Bundesrath is quite evident. A combination of the small states260 THE GOVERNMENTS OF GERMANY.may defeat any organic change of law proposed by the large states; andPrussia alone can bar any amendment to which she is opposed. Theseventeen votes of Prussia on the one side and the seventeen votes of thesmall states on the other might be said , were there any real offset to thepower of Prussia, to constitute the central balance of the system.504. Functions of the Bundesrath . --The Bundesrath occupiesa position in the German system in some respects not unlike thatwhich the Roman Senate held in the government of Rome (secs .171-174). It is, so to say, the residuary legatee of the constitution. All functions not specifically entrusted to any other constitutional authority remain with it, and no power is in principleforeign to its jurisdiction. It has a composite character, and isthe presiding organ of the Empire. It is at one and the sametime an administrative, a legislative, and a judicial body.505. In its legislative capacity, it presides over the wholecourse of lawmaking. The Reichstag has the right to originatemeasures, but, as a matter of practice, originates very few. Mostbills first pass the Bundesrath and go with its sanction to theReichstag. If passed by the people's house, they are returned tothe Bundesrath and there once more adopted. All the more important legislation, moreover, is framed by the imperial officialsand presented to the Bundesrath by the Chancellor, who is notonly president of the federal chamber but also chief of thePrussian delegation . Prussia, therefore, in reality presides overthe process of legislation. Hers is the chief initiative; and thefederal chamber, in which she commands seventeen votes, is theusual source of every great measure. The Reichstag has, ofcourse, the right of amendment, and has sometimes exercised itwith boldness; but nothing that it suggests can become law without the assent of the guiding and overseeing Bundesrath. Theconsent of the Bundesrath, as well as of the Reichstag, must behad also to every treaty which affects any matter that falls withinthe legislative powers of the Empire.506. The measures sent down from the Bundesrath to the Reichstagare generally advocated there, if not by the chancellor himself, by members of the federal chamber specially delegated for that purpose; and theReichstag is usually kept advised of the amendments which the Bundesrathwill accept. All members of the Bundesrath have, however, the right toTHE GOVERNMENTS OF GERMANY. 261be present in the Reichstag, and to express their views upon its floor concerning pending legislation , even when their views are not those whichhave been accepted by the majority in the Bundesrath.507. The administrative function of the federal chamber maybe summed up in the word oversight. It considers all defects orneeds which discover themselves in the administrative arrangements of the Empire in the course of the execution of the laws,and may in all cases where that duty has not been otherwise bestowed, formulate the necessary regulation to cure such defectsand meet such needs. It has, moreover, a voice in the choice ofsome of the most important officers of the imperial service. Itnominates or elects the members of the Court of Accounts, of theSupreme Court of the Empire (Reichsgericht) , and of the ' Chamber of Discipline, ' as well as the officials who administer the imperial pension funds, and those who constitute the directory ofthe Imperial Bank. It confirms the nomination, also, eitherdirectly or through one of its committees, of consuls and of theofficers who exercise the imperial control over the duties andtaxes laid by the states under laws of the Empire. It may alsobe reckoned among the executive functions of the Bundesrath thatit* consent is necessary to a declaration of war (except in case ofinvasion, when the Emperor may act alone) , to a dissolution ofthe Reichstag during a legislative period, and to coercive action.against a state of the Empire.508. The judicial functions of the Bundesrath spring in part outof its character as the chief administrative council of the Empire.When acting as such a council, many of its conclusions partakeof the nature of decisions of a supreme administrative court ofappeal. But its jurisdiction as a court is much wider than questions of administration . It can declare a state of the Empiredelinquent, and order execution to issue against it. It is thecourt of highest instance in every case of the denial of justice toan individual in a state court arising out of a defect or deficiencyin the law of the state; it being within its competence in such acase to compel the state to cure the deficiency and afford thesuitor the proper remedy. It is the court of appeal in all casesof dispute between the imperial government and a state, and inall cases arising between two or more states of the Empire which262 THE GOVERNMENTS OF GERMANY.involve not mere private law questions (such cases go to theordinary civil courts) , but points of public law.509. In case it cannot agree upon a conclusion in such disputes, thewhole legislative power is brought into play and a law is passed coveringthe matter in controversy. If in any case it considers itself unfitted by itsorganization, or for any other reason, to act as a court in controversiesbrought before it, it may delegate its judicial powers to a court or toexperts. This it did in 1877 with reference to the dispute between Prussiaand Saxony concerning the Berlin-Dresden railway.¹-510. Organization of the Bundesrath. The Imperial Chancellor is chairman of the Bundesrath. He is appointed by theking of Prussia, and he must also be one of Prussia's seventeenrepresentatives, for it is the better opinion among Germanconstitutional lawyers that the Chancellor's membership in thefederal chamber is necessary to his presidency of the body. Incase of a tie vote, the Chancellor's vote is decisive: that is tosay, the side on which Prussia's votes are cast prevails, for her votemust be undivided: —the Chancellor's vote is not his own, but isone- seventeenth part of Prussia's whole vote.511. The Chancellor may appoint a substitute to act in his absence aspresident, this limitation resting upon his choice, that if he does not appoint a Prussian delegate to the office he must appoint a Bavarian. Hemay also appoint a substitute to perform all his functions, and suchan appointment would include the presidency of the Bundesrath unlessa separate and special delegation of that office were made, and unless,also, perhaps, the general substitute were not a member of the FederalCouncil.-512. Inasmuch as it is not merely the legislative but also the administrative organ of the Empire, the Bundesrath may be convened without theReichstag. It must be called together if one-third of its members demanda session. Its business, moreover, is continuous from session to session,being taken up at each session where it was left off at the last: an arrangement by which it gains both efficiency and expedition in action. Itssessions are secret: for it preserves the reserve of a guiding cabinet. Itscompromises and quarrels do not go abroad.513. Imperial law makes no provision with regard to a quorum in theBundesrath. It is believed by German jurists, however, that its businesscould go forward, after proper notice, if only the Chancellor, its president,were present. No state can cast its vote upon any question in which it isnot interested.1· Laband, p. 43, n.THE GOVERNMENTS OF GERMANY. 263514. Committees.—The Bundesrath follows the practice ofother deliberative bodies in referring various matters to specialcommittees of its members. It has, too, like other bodies, certain standing committees. These are three: one on AlsaceLorraine, one on the Constitution, and one on the Order ofBusiness.Much more important than these, however, are eight delegations of its members which, though called committees, may bemore properly described as Commissions, for, like the executivecommittee of our own Congress under the old Confederation ( sec.1069), they continue to sit during the recesses of the chamberwhich they in a sense represent. Of these Commissions two areappointed by the Emperor, namely a Commission " for the LandForces and Fortifications " and a Commission " for NavalAffairs ": five are chosen yearly by the Bundesrath, namely, those"on Tariffs and Taxation, " " for Trade and Commerce, " " for Railways, Posts, and Telegraphs, " " on Justice, " and "on Accounts "(Rechnungswesen); the eighth and most important, the " Commission on Foreign Affairs, " consists of the representatives ofBavaria, Saxony, and Württemberg, and of two other memberschosen by the Bundesrath. At least five states must be represented on each of these Commissions, and Prussia must always beone of the five, except in the case of the Commission on ForeignAffairs. On this last Prussia needs no representation; she hascommitted to her, through her king who is also Emperor, thewhole conduct of the foreign affairs of the Empire; the Commission is appointed simply to watch the course of internationalrelations, and to inform the several states of the posture offoreign affairs from time to time. "It has to prepare no conclusion for the Bundesrath and to make no reports to it: it servesto receive communications concerning the foreign affairs of theEmpire and to exchange opinions with the imperial administration concerning " those affairs.¹ Its action is thus independentof its connection with the Bundesrath; and this is the chief point.of contrast between it and the other Commissions. Their dutiesare principally to the Bundesrath: they for the most part onlymake reports to it.1 Laband, p. 46.264 THE GOVERNMENTS OF GERMANY.515. Besides their right to representation on the Commission onForeign Affairs, of which Bavaria has the presidency, Württemberg,Bavaria, and Saxony have also the right to appointments on the Commissions for Land Forces and Fortifications and for Naval Affairs which it isthe privilege of the Emperor to name. Prussia is entitled to the presidency of all the Commissions except that on Foreign Affairs. Each staterepresented has one vote in the action of a Commission, and a simplemajority controls.-516. The Reichstag: its Character and Competence. It wouldlead to very serious misconceptions to regard the Bundesrath andthe Reichstag as simply the two houses of the imperial legislature,unlike each other only in some such way as our Senate and Houseof Representatives are unlike, only, i.e. , because the upper houseis differently constituted and is entrusted with a certain share infunctions not legislative. Properly conceived, the Bundesrathand Reichstag stand upon a very different footing with referenceto each other. The Bundesrath is the sovereign organ of theEmpire, the authoritative representative of the " body of Germansovereigns and the senates of the free cities. " Though it originates most of the legislation of the Empire, legislation is nomore peculiarly its business than is the superintendence of administration or the exercise of judicial functions. It, as part ofthe administration, governs; the Reichstag, as representing theGerman people, controls. The control of the Reichstag is exercised, not only through its participation in legislation , but alsothrough the giving or withholding of its sanction to certain ordinances to whose validity the constitution makes its concurrencenecessary; through its power of refusing to pass the necessarylaws for the execution of treaties of which it does not approve;through its right to inquire into the conduct of affairs; andthrough its right of remonstrance. Its powers are not enumerated; they are, exercised in one form or another, as wide as theactivities of the Empire. The legislative competence of theEmpire is, since 1873, legally unlimited as to private law: itcovers the whole field of civil and criminal enactment.517. -Composition of the Reichstag . The Reichstag represents,not the states, or the people of the several states regarded separately, but the whole German people. Representation is dis-THE GOVERNMENTS OF GERMANY. 265tributed on the basis of about one representative to every onehundred and thirty-one thousand inhabitants . Representativesare, however, elected by districts, one for each district, and nodistrict may cross a state line and include territory lying in morethan one state.. If, therefore, any state of the Empire have lessthan one hundred and thirty- one thousand inhabitants, it may,nevertheless, constitute a district and send a representative tothe Reichstag.518. The Reichstag at present ( 1897 ) consists of three hundred andninety-seven members; and of this number Prussia returns two hundredand thirty- five, about three-fifths of the whole number. The electoral districts as they now stand ( 1897 ) are sadly in need of change. They werefixed so long ago that Berlin , though it has grown to possess more than amillion and a half inhabitants, has only six members in the Reichstag.519. The members of the Reichstag are elected for a term offive years by universal suffrage and secret ballot. The votingage in Germany is twenty-five years; and that is also the earliestage of eligibility to the Reichstag.520. The election districts are determined in the northern statesaccording to laws passed under the North German Confederation; inBavaria, by the Bavarian legislature; in the other southern states , by theBundesrath. The subdivisions of the districts, the voting precincts, aredetermined by the administrations of the states.521. An absolute majority is required for election, as in France (sec.405) . In case no candidate receives such a majority, the commissionerof election — an officer appointed by the administration for each district—is to order a new election to take place within fourteen days after theofficial publication of the result of the first, the voting to be for the twocandidates who received the highest number of votes. Should this secondelection result in a tie the lot decides.522. Election to the Reichstag takes place, not on days set bystatute, but on days appointed by executive decree, as in France(sec. 405) . For the Reichstag may be dissolved by the Emperor,with the consent of the Bundesrath (by a vote in which Prussiaconcurs) before the completion of its regular term of five years.523. In case of a dissolution, a new election must be ordered withinsixty days, and the Reichstag must reassemble within ninety days. TheEmperor may also adjourn the Reichstag without its own consent ( or, inEnglish phrase, prorogue it) once during any session , for not more thanthirty days.266 THE GOVERNMENTS OF GERMANY.-- 524. Sessions of the Reichstag . The Reichstag meets at thecall of the Emperor, who must call it together at least once eachyear; and who may convene it oftener. He must summon at thesame time the Bundesrath. The sessions of the Reichstag mustbe public; it is not within its choice to make them private. Aprivate session is regarded as, legally, only a private conferenceof the members of the Reichstag, and can have no public authoritywhatever.525. Members of the Reichstag who accept a salaried office under theEmpire or one of the states, or an imperial or state office of higher rankor power than any they may have held when elected, must resign andoffer themselves for reëlection. (Compare sec. 865.)526. Organization of the Reichstag. The Reichstag elects itsown President, Vice- presidents (2) , and Secretaries . For thefacilitation of its business, it divides itself by lot, for the session,into seven ' Sections ' (Abtheilungen) , each Section being made tocontain, as nearly as may be, the same number of members aseach of the others. These Sections divide among them the workof verifying the election of members and the choice of specialcommittees. The Reichstag has no standing committees; butfrom time to time, as convenience suggests, temporary committees are named, whose duty it is to prepare information for thebody, which they present in reports of a general nature. Thesecommittees it is which the Sections select. Each Section contributes its quota of members to each committee. The partyleaders, however, always determine beforehand the division ofplaces on the Committees and the Sections merely do their willin the matter. Government bills, moreover, are not referred tothe committees . They play no such part in revision as is playedbythe committees of the French Chamber of Deputies (secs . 432-434) . One- half of the members constitute a quorum; and anabsolute majority is requisite to a valid vote.527. Election of Officers. - The initial constitution of a newlyelected Reichstag is interesting. It comes to order under the presidencyof the oldest member; it then elects its president, two vice- presidents, andsecretaries; the president and vice- presidents for a term of only fourweeks. At the end of these four weeks a president and vice-presidentsare elected for the rest of the session. There is no election of officers forTHE GOVERNMENTS OF GERMANY. 267the whole legislative term, as in England and the United States: at theopening of each annual session a new election takes place. It is only atthe first, however, that there is a, so to say, experimental election for atrial term of four weeks.528. Powers of the Reichstag: the Budget. - The Bundesrath,as I have said, governs; the Reichstag in a measure controls.But only in a measure. Its assent is necessary to the validityof all legislation. Though the Bundesrath originates, it cannotrule in the field of law without the coöperation of the popularchamber. Like other popular assemblies, too, the Reichstagvotes the taxes and subjects the government to sharp criticism.when it asks for money. But the annual budget comes to it, likeother subjects of legislation, from the Bundesrath, and with thesanction of that great chamber already behind it; many of theprincipal revenue laws are not annual but permanent; the army,for whose maintenance the larger votes are asked, is organizedfor periods of several years together and must be paid; and thereis really very little latitude of choice with regard to any butnew or subordinate expenditures. No minister is responsible tothe Reichstag for what he does or proposes. The Emperor maydissolve the Reichstag at any time, if the Bundesrath consents,and has frequently exercised the power with the result of obtaining in the new elections the majority he desired . The Reichstagmay influence affairs, may win slow victories by persistent andwell-directed criticism, may force modifications of policy; but itis constantly made to realize the fact that it cannot govern, andthat its chief function is not origination but control.529. Classes and Parties. The majority of its members, moreover, are Prussians, and Prussia is above all things else a military state, trained to the compact order and instinctive obedienceof a strong monarchy. Classes, too, are sharply marked in Prussia. An active and influential landed aristocracy furnishes thearmy with its best officers, the court with its most devoted servants, the public assemblies with their most conservative leaders .The parties that desire democratic privilege work against ancientprestige, against the habit of the community, against the organization and the prejudices of long- established classes. Nationalparties, moreover, are broken athwart by the divergent feelings268 THE GOVERNMENTS OF GERMANY.and variant interests of the different states of the unequal Empire. Prussia supports the monarchy whose power galls thelesser states; her statesmen withstand the process of liberalization which men of the smaller states would fain see pressed forward. Neither responsible party government nor any kind ofclear-cut constitutional rule is yet possible.530. Imperial Administration. While the distinction betweenthe executive and legislative functions of government is sharplyenough preserved in Germany, no equally clear discrimination ismade in practice between executive and judicial functions. Thejudiciary is a branch of the administration. The caption ' Imperial Administration ' covers, therefore, all activities of the government of the Empire which are not legislative.531. Although it is a fundamental principle of the imperialconstitution that ' the Empire has sovereign legislative power, thestates only autonomy, ' the Empire has heretofore occupied onlya part of the great field thus opened to it, and has confined itselfas a rule to mere oversight, leaving to the states even the execution of imperial laws.532. The judges of all but the supreme imperial court, for instance ,the tariff officials and gaugers, the coast officers, and the district militaryauthorities, are state officers.533. The Imperial Chancellor —. The Empire has, nevertheless , its own distinct administrative organs, through which ittakes, whether through oversight simply or as a direct executive, a most important and quite controlling part in affairs;and the head and centre of its administration is the ImperialChancellor, an officer who has no counterpart in any other constitutional government.534. (1) Looked at from one point of view, the Chancellormay be said to be the Emperor's responsible self. If one couldclearly grasp the idea of a responsible constitutional monarchstanding beside an irresponsible constitutional monarch fromwhom his authority was derived, he would have conceived thereal, 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 pleasure, he isTHE GOVERNMENTS OF GERMANY. 269still, while he retains his office, virtually supreme head of thestate, standing between the Emperor and the Reichstag, as thebutt of all criticism and the object of all punishment. He is nota responsible minister in the English or French sense ( secs. 427,868, 869); there is, strictly speaking, no ‘ parliamentary responsibility ' in Germany. In many respects, it is true, the Chancellor does occupy with regard to the Reichstag much the sameposition that a French or English ministry holds towards therepresentatives of the people; he must give an account of the administration to them, when a debate is forced upon him. Butan adverse vote does not unseat him. His ' responsibility ' doesnot consist in a liability to be forced to resign, but consistssimply in amenability to the laws. He does not represent themajority in the Reichstag, but he must obey the law.535. This responsibility ' of the Chancellor's, so far as it goes, shields,not the Emperor only, but also all other ministers. "The constitutionof the Empire knows only a single administrative chief, the ImperialChancellor. " 1536. So all- inclusive is the representative character of the chancellorship that all powers not specifically delegated to others rest with the Chancellor. Thus, except when a special envoy is appointed for the purpose,he conducts all negotiations with foreign powers. He is also charged withfacilitating the necessary intercourse between the Bundesrath and theReichstag.The Chancellor's relation to the Reichstag is typified in hisduty of submitting to it the annual budget of the Empire.537. (2) Still further examined, the chancellorship is foundto be the centre, not only, but also the source of all departmentsof the administration . Theoretically at least the chancellorshipis the Administration: the various departments now existing areoffshoots from it, differentiations within its all- embracing sphere.In the official classification adopted in German commentaries onthe public law of the Empire, the Chancellor constitutes a classby himself. There are ( 1 ) The Imperial Chancellor, (2) Administrative officials, (3) Independent (i.e. , separate) financial officials, and (4) Judicial officials. The Chancellor dominates theentire imperial service.1 Laband, p. 57. 2 Laband, p. 56.270 THE GOVERNMENTS OF GERMANY.538. (3) A third aspect of the Chancellor's abounding authority is his superintendency of the administration of the laws.of the Empire by the states. With regard to the large numberof imperial laws which are given into the hands of the severalstates to be administered, the Empire may not only commandwhat is to be done, but may also prescribe the way in which itshall be done and it is the duty of the Chancellor to superintendthe states in their performance of such behests . In doing thishe does not, however, deal directly with the administrativeofficials of the states, but with the state governments to whomthose officials are responsible. In case of conflict between theChancellor and the government of a state, the Bundesrath decides.539. The expenses of this administration of federal laws by the statesfall upon the treasuries of the states themselves, not upon the treasury ofthe Empire. Such outlays on the part of the states constitute a part oftheir contribution to the support of the imperial government. The statesare required to make regular reports to the imperial government concerning their conduct of imperial administration.540. (4) When acting in the capacity of chairman of theBundesrath, the Chancellor is simply a Prussian, not an imperial,official. He represents there, not the Emperor, for the Emperor as Emperor has no place in the Bundesrath, but the king ofPrussia.541. During most of the time since the institution of the Empire theChancellor has been also chief minister of Prussia as president of theCouncil; and such a union of offices is both natural and desirable. Theories aside, the Prussian government guides imperial affairs through theChancellor.542. The Vice-chancellorship. The laws of the Empire make adouble provision for the appointment of substitutes for the Chancellor.As I have already said, in connection with his presidency of the Bundesrath (sec. 511 ) , he may himself appoint a substitute, for whose acts heis, however, responsible. In addition to this a law of March 17 , 1878 ,empowers the Emperor to appoint a responsible Vice-Chancellor. Thisappointment is made, upon the motion of the Chancellor himself, for theadministration of all or any part of his duties, when he is himself hindered,even by an overweight of business, from acting; the Chancellor himselfjudging of the necessity for the appointment. The Chancellor may at anytime, too, resume any duties that may have been entrusted to the Vice-THE GOVERNMENTS OF GERMANY. 271Chancellor, and himself act as usual. He is thus, in effect, ultimatelyresponsible in every case, — even for the non-exercise of his office. Thevice-chancellorship is only a convenience.― 543. Foreign Affairs. The full jurisdiction over the foreignaffairs of the Empire conferred upon the imperial government bythe constitution of the Empire does not exclude the several statesfrom having their own independent dealings with foreign courts:it only confines them in such dealings to matters which concernthem without immediately affecting imperial interests. Thesubject of extradition, for instance, of the furtherance of scienceand 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, independentlyof the imperial Foreign Office . The states, therefore, have asfull a right to send ambassadors for their own constitutional purposes as the Empire has to send ambassadors for its greater objects affecting the peace and good government of Europe. It maythus often happen that the Empire and several of the states ofthe Empire are at the same time separately represented at oneand the same court. In the absence of special representativesfrom the states, their separate interests are usually cared for bythe 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 (dasAuswärtige Amt).544. Internal Affairs - . The general rule of government inGermany, as I have said, is that administration is left for themost part to the states, only a general superintendence being exercised by the imperial authorities. But the legislative sphereof the Empire is very much wider than is the legislative sphereof the central government in any other federal state. Imperialstatutes prescribe in very great variety the laws which the statesadminister, and are constantly extending farther and farther theirlines of prescription . From the Empire emanate not only lawswhich it is of the utmost moment to have uniform, such aslaws of marriage and divorce, but also laws of settlement, poorlaws, laws with reference to insurance, and even veterinary regulations. Its superintendence of the local state administration of-272 THE GOVERNMENTS OF GERMANY.imperial laws, moreover, is of a very active and systematicsort.545. Weights and Measures. - Imperial methods of supervision arewell illustrated in the matter of weights and measures. The laws withreference to the standard weights and measures to be used in commerceare passed by the imperial legislature and administered by state officialsacting under the direction and in the pay of the state authorities; butthorough control of these state officials is exercised from Berlin. Thereis at the capital a thoroughly organized Weights and Measures Bureau(Normal-Eichungskommission ) , which supplies standard weights andmeasures, superintends all the technical business connected with thedepartment, and is in constant and direct association with the state officials concerned, to whom it issues from time to time specific instructions.546. 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 alonedetermines money-issue and coinage. But even here the statesare the agents of the Empire in administration . Coining is entrusted to state mints, the metal to be coined being distributedequally among them. This, however, is not really state coinage.The state mints are the mere agents of the imperial government:they coin only so much as they are commanded to coin; theyoperate under the immediate supervision of imperial commissioners; and the costs of their work are paid out of the imperialtreasury. They are state mints only in this, that their officersand employees are upon the rolls, not of the imperial, but of thestate civil service. The Empire would doubtless have had mintsof its own had these not already existed ready to its hand.-547. Railways . The policy of the Empire with reference tothe management of the railways is as yet but partially developed .The Empire has so far made comparatively little use of the extensive powers granted it in this field by its constitution . It couldvirtually control; but it in practice only oversees and advises.The Imperial Railway Office ( Reichs- Eisenbahnamt) has advisoryrather than authoritative functions; its principal supervisorypurpose is to keep the various roads safe and adequately equipped.Some railways the Empire itself owns, but most of the lines areowned by the several states; and the states are bound by theconstitution to administer them, not independently or antagonis-THE GOVERNMENTS OF GERMANY. 273tically, but as parts of a general German system. Here againthe Empire has refrained from passing any laws compelling obedience to the constitution on this point; possibly because thestates have assiduously complied of their own accord. Usingthe Bundesrath for informal conference on the matter (thoughthe Bundesrath has no constitutional authority in railway administration) they have effected satisfactory coöperative arrangements.548. The railways of Bavaria stand upon a special footing: for Bavaria came into the federation on special terms, reserving an independencemuch greater than the other states retain in the management of her army,her railways, and her posts and telegraphs .549. For military purposes, the Empire may command the services ofthe railways very absolutely. It is as aids to military administration primarily that their proper construction and efficient equipment are insistedon through the Imperial Railway Office. Even the Bavarian railroadsmay be absolutely controlled when declared by formal imperial legislativeaction to be of military importance to the Empire. With reference toany but the Bavarian roads a simple resolution of the Bundesrath alonesuffices for this declaration.550. The duty of the states to administer their roads as parts of asingle system is held to involve the running of a sufficient number oftrains to meet all the necessities of passenger and freight traffic , the running of through coaches, the maintenance of proper connections, theaffording of full accommodations, etc.551. At times of scarcity or crisis, the Emperor may, with the adviceof the Bundesrath, prescribe low tariffs, within certain limits, for thetransportation of certain kinds of provisions.552. Posts and Telegraphs. Here the administrative arrangements of the Empire are somewhat complicated . Bavaria andWürttemberg retain their own systems and a semi - independencein their administration, just as Bavaria does with regard to herrailways also; being subject to only so much of imperial regulation as brings their postal and telegraphic services into a necessary uniformity with those of the Empire at large. In most ofthe states the imperial authorities directly administer these services; in a few - Saxony, Saxe- Altenburg, the two Mecklenburgs, Brunswick, and Baden - there is a sort of partnershipbetween the states and the Empire. The principle throughoutis, however, that the Empire controls .274 THE GOVERNMENTS OF GERMANY.553. Patents, etc. - Besides the administrative activities with reference to internal affairs which I have 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 seaworthiness.-554. Military and Naval Affairs. The Empire as such has anavy, but no troops. Prussia is the only state of the Empirethat ever maintained a naval force, and she has freely resignedto the Empire, which she virtually controls, the exclusive direction of naval affairs . But the case is different, in form at least,withthe army. That is composed of contingents raised, equipped,drilled, and, in all but the highest commands, officered by thestates . This at least is the constitutional arrangement: the actualarrangement is different. Only Bavaria, Saxony, Württemberg,and Brunswick really maintain separate military administrations.The other states have handed over their military prerogatives tothe king of Prussia; and Brunswick also has organized her contingent in close imitation of and subordination to the Prussianarmy. Bavaria's privileges extend even to the appointment of thecommander of her contingent. The Emperor is commander- inchief, however, appointing all the higher field officers; and theimperial rules as to the recruitment, equipment, discipline, andtraining of troops and as to the qualifications and relative grading of officers are of the most minute kind and are imperativewith regard to all states alike.555. Finance. The expenses of the Empire are met partlyfrom imperial revenues, and partly from contributions by thestates. The Empire levies no direct taxes; its revenues comeprincipally from customs duties and excises, certain stamp taxes,the profits of the postal and telegraph system, of imperial railways, of the imperial bank, and like sources. So far as these donot suffice, the states assist, being assessed according to population. And here, again, the states undertake much of the actualwork of administration: the customs officials, for example, beingstate officers acting under imperial supervision. The financialbureaux, like all other branches of the imperial government, areimmediately subordinated to the Imperial Chancellor.556. Justice. In the administration of justice, as in so manyother undertakings of government, the Empire superintends,THE GOVERNMENTS OF GERMANY. 275merely, and systematizes . The state courts are also courts ofthe Empire: imperial law prescribes for them a uniform organization and uniform modes of procedure: and at the head of the system stands the Imperial Court (Reichsgericht) at Leipzig, createdin 1877 as the supreme court of appeal . The state governmentsappoint the judges of the state courts and determine the judicialdistricts; but imperial laws fix the qualifications to be requiredof the judges, as well as the organization that the courts shallhave. The decisions of the court at Leipzig give uniformity tothe system of law.557. Citizenship. - Every citizen of a state of the Empire is acitizen of the Empire also and may enjoy the rights and immunities of a citizen in every part of the Empire; but citizenship,though rooted in the states by way of locus, is conferred onlyupon terms fixed by federal law. The Empire determines innearly all respects this fundamental question of civil status; andevery citizen is thereby made the more directly and immediatelya citizen of the Empire. It remains, nevertheless, the theory ofthe relationship that citizenship is primarily state citizenshipand that citizenship of the Empire flows out of citizenship of thestate, as with us. (Compare secs. 1121, 1124. )

THE GOVERNMENT OF PRUSSIA.558. The organization of government in Prussia has, for thestudent of German political institutions, a double interest andimportance. In the first place, Prussia's king is Germany'sEmperor; Prussia is the presiding and controlling state of theEmpire; and many of her executive bureaux are used as administrative agencies of the Empire. Her government is in a veryreal sense an organ and representative of the imperial government. In the second place, Prussia's administrative systemserves as a type of the highest development of local governmentin Germany. Prussia has studied to be more perfect than anyother European state in her administrative organization.-559. Stages of Administrative Development. Until the timewhen she emerged from the long period of her development asthe Mark Brandenburg and took her place among the great mili276 THE GOVERNMENTS OF GERMANY.tary states of Europe, Prussia's administrative organization wasof a very crude sort, not much advanced beyond the mediævalpattern. Later, under the Great Elector and his immediate successors, though well out of her early habits, she was still littlemore than a mere military state, and her administration, thoughmore highly developed, had almost no thought for anything butthe army. Only since the close of the Napoleonic wars has hersystem of government become a model of centralized civil order.560. Process of Centralization. The Great Elector reducedthe feudal Estates of the Mark to complete subjection to hiswill. He it was, also, who began the policy by which localaffairs as well were to be centralized . In the towns the process was simple enough. In them there was little effective obstruction: the channels were already open. There the militaryauthorities, directly representative of the Elector, had all alongdictated in police and kindred matters; direct ordinances of theElector, moreover, regulated taxation and the finances, and evenmodified municipal privileges at pleasure. It did not take long,such being the system already established, to make burgomasterscreatures of the royal will, or to put effective restrictions uponmunicipal functions .561. In the provinces, however, it was quite another matterto crush out local privilege. The Prussia of the Great Electorand his successors was no longer the Mark Brandenburg, but theextended Prussia of conquest. There were many Estates to dealwith in the several principalities of the kingdom; and theseEstates, exercising long-established prerogatives, very stubbornlycontested every step with the central power. They were thechannels through which the sovereign's will had at first tooperate upon provincial government, and they were by no meansopen channels. They insisted, for a long time with considerablesuccess, that the chief officers of the provinces should be nominated by themselves; and they nominated natives, men of theirown number. Only by slow and insidious processes did theElector, or his successors the kings of Prussia, make out of theserepresentative provincial officials subservient royal servants .562. First Results of Centralization . The system pursued inthe process of centralization, so far as there was any system,THE GOVERNMENTS OF GERMANY. 277was a system by which central control was grafted upon the oldgrowths of local government derived from the Middle Ages. Theresult was of course full of complexities and compromises.the vast royal domains bailiffs administered justice and police, asdid Schulzen in the manorial villages. In the larger rural areasa Landrath, or sheriff, " nominated by the county nobility, usually from among their own number, and appointed by the king, "saw to the preservation of order, to the raising of the levies, totax collection, and to purveyance. In the towns there was adouble administration. Magistrates of the towns' own choosingretained certain narrow local powers, constantly subject to beinterfered with by the central authority; but royal tax-commissioners, charged with excise and police, were the real rulers.Above this local organization, as an organ of superintendence,there was in each province a ' Chamber for War and Domains, 'which supervised alike the Landrath and the city tax- commissioners.66563. AWar and Domains Chamber consisted of a president, a " directoror vice- president, and a number of councillors proportioned to the size,populousness, or wealth of the province. " The president of a chamberwas expected to make periodical tours of inspection throughout theprovince, as the Landraths did throughout their counties. " In thedespatch of business by a Chamber, the councillors were assigned specialdistricts, special kinds of revenue, or particular public improvements fortheir superintendence or administration, the whole board supervising,auditing, etc. Fri,564. Justice and Finance. Much progress towards centralization was also made by the organization of justice and finance."The administration of justice was in the hands of boards, theRegierungen, or governments, on the one hand [ the whole organization of administration in Prussia being characteristically collegiate] , and the courts on the other. "565. In finance also there was promise of systematization.During the period preceding the Napoleonic wars, when Prussiafigured as a purely military state, the chief concern of the centralgovernment was the maintenance and development of the army.The chief source of revenue was the royal domains: the chief1 Tuttle, History of Prussia, Vol. III . , pp. 107-109 .278 THE GOVERNMENTS OF GERMANY.need for revenue arose out of the undertakings of war.¹ Therewere, therefore, at the seat of government two specially prominent departments of administration, the one known as the ' General War Commissariat, ' and having charge of the army, theother known as the ' General Finance Directory, ' commissionedto get the best possible returns from the domains; and here andthere throughout the provinces there were ' War Commissariats 'and 'Domains Chambers ' which were the local branches of thetwo great central departments. These two departments andtheir provincial ramifications were, however, instead of beingcoördinated, kept quite distinct from each other, clashing andinterfering in their activities rather than coöperating.-566. Fusion of Departments of War and Domains. Such atleast was the system under the Great Elector and his immediatesuccessor, Frederic I. , if system that can be called which waswithout either unity or coherence. Frederic William I. unitedWar and Domains under a single central board, to be known asthe 'General Supreme Financial Directory for War and Domains, 'and brought the local war and domains boards together in theprovinces as Chambers for War and Domains. Under this arrangement the various war councillors ' who served the provincial Chambers were charged with a miscellany of functions.Besides the duties which they exercised in immediate connectionwith military administration, they were excise and police commissioners, and exercised in the cities many of the civil functionswhich had formerly belonged to other direct representatives ofthe Crown. In the rural districts the Chambers were served incivil matters by the several Landräthe.6567. Differentiation of Central Bureaux. This arrangementspeedily proved as cumbrous as the name of its central organ, andan internal differentiation set in. The General Directory separated into Committees; and, as time went on, these committeesbegan to assume the character of distinct Ministries, — thoughupon a very haphazard system. Frederic the Great further confused the system by creating special departments immediately1 The army consumed about five-sevenths of the entire revenue.2 Seeley, Life and Times of Stein, Vol. I. , Chap. II. Also Tuttle, Vol. I. ,pp. 421 , 422,THE GOVERNMENTS OF GERMANY. 279dependent upon himself and a special cabinet of advisers havingno connection with the General Directory. He was himself theonly cohesive element in the administration: it held togetherbecause clasped entire within his hand.568. Reforms of Stein -and Hardenberg. — Order was at lastintroduced into the system through the influence of Baron vomStein and the executive capacity of Count Hardenberg, the twomost eminent ministers of Frederic William III. , who togethermay be said to have created the present central administrationof Prussia. Prussia owes to the genius of Stein, indeed, themain features of both her central and her local organization.Her central organization is largely the direct work of his hands;and her local organization derives its principles from his thoughtnot only, but also from the provisions of the great Ordinance bywhich he reconstructed the administration of the towns.569. Prussian administrative arrangements as they now exist may besaid to be in large part student-made. As the Roman emperors honoredthe scientific jurists of the Empire by calling upon them to preside overlegal development, so have Prussian kings more and more inclined to relyupon the advice of cultured students of institutions in the organic development of the government. Stein was above all things else a student ofgovernments. In our own day the influence of Professor Gneist uponadministrative evolution has continued the excellent tradition of studentpower. And because she has thus trusted her students, Prussia has hadpractical students: students whose advice has been conservative and carefully observant of historical conditions .570. Of course it is much easier to give such influence to students wherethe government follows for the most part royal or executive initiative thanwhere all initiative rests with a popular chamber. It is easier to get andto keep the ear of one master than the ears of five hundred.571. Reform of Local Government before 1872. The countylaw (Kreisordnung) of the 13 December, 1872, has been calledthe Magna Charta of Prussian local government. Upon it alllater changes and modifications rest. Between the period ofStein's reforms and the legislation of 1872 the organization oflocal government was substantially as follows: The provinceswere divided into ' Government Districts, ' as now, the Govern1 See R. B. D. Morier's essay on Local Government in Germany, in thevolume of Cobden Club Essays for 1875.280 THE GOVERNMENTS OF GERMANY.ment Districts into ' Circles ' or Counties . An administrativeBoard established in the Government District was then, as now,the vital organ of local administration. In the province therewas also a board, exercising general supervisory powers, the eyeof the central bureaux in the larger affairs of administration, theaffairs, that is, which extended beyond the area of a single Government District; and, as the chief officer of the province, a'Superior President ' of influential position and function. Butalongside of this quite modern machinery stood the old provincialEstates (revived in 1853) , representing, not the people, but thesocial orders of a by-gone age, and possessing certain shadowypowers of giving advice. In the ' Circle ' or County, there wasstill the Landrath, as formerly, appointed from a list of locallanded 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 ofantiquated pattern recalled to life, like the Estates of the province, in 1853. In the towns, which had directly received theimprint of Stein's reforming energy and sagacity, administrationwas conducted by boards of magistrates chosen by popular councils and associated with those councils in all executive businessby means of a joint- committee organization, the burgomastersbeing presidents rather than chief magistrates.572. Landgemeinde and Manors.-Besides these areas of administration there were rural communes ( Landgemeinde) still connected, quiteafter the feudal fashion, with adjacent or circumjacent manors, their government vested in a Schulze and two or more Schöffen (sheriffs or justices) ,the former being appointed either by the lord of the manor, or, if thevillage was a free village, as sometimes happened , by the owner of someancient freehold within the commune with which manorial rights hadsomehow passed. The commune had , besides, either a primary or anelective assembly. The communes were often allowed, under the supervision ofthe official board of the Government District , to draw up chartersfor themselves, embodying their particular local laws and privileges.Within the manors police powers, poor-relief, the maintenance of roads,etc., rested with the proprietor. Local government was within theirborders private government.573. Reform of 1872. The legislation of 1872 took the finalsteps towards getting rid of such pieces as remained of the anti-THE GOVERNMENTS OF GERMANY. 281quated system . It abolished the hereditary jurisdiction of themanor and the dependent office of Schulze, and established inplace of the feudal status an equal citizenship of residence. Inplace of the Estates of the province and county it put real representative bodies. It retained the Landrath, but somewhat curtailed his powers in the smaller areas within the Circle, andassociated with him an effective administrative board, of whichhe became little more than president. It carried out morethoroughly than before in the various areas the principle ofboard direction, integrating the lesser with the greater boards,and thus giving to the smaller areas organic connection withthe larger. It reformed also the system of local taxation.It is upon this legislation, as I have said, that the systemof local government now obtaining in Prussia is erected¹ (secs.588, 618).574. The Central Executive Departments. - Stein's scheme forthe development of the central organs of administration broughtinto existence five distinct ministries, which no longer masqueraded as committees of a cumbrous General Directory, and whosefunctions were distributed entirely upon a basis of logical distinction, not at all upon any additional idea of territorial distribution .These were a Ministry of Foreign Affairs, a Ministry of theInterior, a Ministry of Justice, a Ministry of Finance, and aMinistry of War. This, however, proved to be by no means afinal differentiation. The Ministry of the Interior was at firstgiven a too miscellaneous collection of functions, and there splitoff from it in 1817 a Ministry of Ecclesiastical, Educational, andSanitary Affairs, and in 1848 a Ministry of Trade, Commerce, andPublic Works and a Ministry of Agriculture. In 1878 a stillfurther differentiation took place. The Ministry of Finance, retaining distinct reminiscence of its origin in the administrationof the royal domains, had hitherto maintained a Department ofDomains and Forests . That department was in 1878 transferredto the Ministry of Agriculture. At the same time the Ministryof Trade, Commerce, and Public Works was divided into two, aMinistry of Trade and Commerce and a Ministry of PublicWorks.1 Morier, p. 434.282 THE GOVERNMENTS OF GERMANY.575. There are now, therefore, nine ministries: ( 1 ) a Ministry ofForeign Affairs (Stein, 1808); ( 2 ) a Ministry of the Interior ( 1808); ( 3) aMinistry of Ecclesiastical, Educational, and Sanitary Affairs ( 1817);(4) a Ministry of Trade and Commerce ( 1848); ( 5 ) a Ministry of Agriculture ( 1848) , Domains, and Forests ( 1878 ); ( 6) a Ministry of PublicWorks ( 1878 ); ( 7 ) a Ministry of Justice ( 1808); ( 8) a Ministry of Finance ( 1808 ); and ( 9) a Ministry of War ( 1808 ) .576. The Council of State. - Most of these ministries were createdbefore Prussia had any effective parliamentary system, and when, consequently, there was no instrumentality in existence through which therecould be exercised any legislative control over the executive. Stein wouldhave revived for the exercise of some such function the ancient Council ofState (Staatsrath) founded by Joachim Friedrich in 1604 , which had atfirst presided over all administration but whose prerogatives of oversightand control had gradually decayed and disappeared. This council, whichbore a general family resemblance to the English Privy Council ( sec. 854) ,had a mixed membership made up in part of princes of the blood royal,in part of certain civil , military, and judicial officials serving ex officio, andin part of state officials specially and occasionally summoned. It wasStein's purpose to rehabilitate this body, which was in a sense representative of the classes standing nearest to government and therefore presumably best qualified to test methods, and to set it to oversee the work of theministers to serve as a frame of unity in the administration without withdrawing from the ministers their separate responsibility and freedom ofmovement. This part of his plan was not, however, carried out, and theCouncil of State, though still existing, a shadow of its former self, hasnever regained its one-time prominence in administration.-577. Staatsministerium. Instead of adopting Stein's plan,Count Hardenberg integrated the several ministries by establishing the Ministry of State, or College of Ministers ( Staatsministerium), which stands in much the same relation to Prussianadministration that the French Council of Ministers (sec. 422)occupies towards administration in France, though it in somerespects resembles also the French Council of State (sec. 468 ) .It is composed of the heads of the several ministries and meets,once a week or oftener, for the consideration of all matters whichconcern all the executive departments alike, to discuss proposedgeneral laws or constitutional amendments, to adjust conflictsbetween departments, to hear reports from the ministers as totheir policy in the prosecution of their separate work, to exercisea certain oversight over local administration, to concert measuresTHE GOVERNMENTS OF GERMANY. 283to meet any civil exigency that may arise, etc. It serves to giveunity and coherence to administration .578. The Supreme Chamber of Accounts. - The same purposeis served by the Supreme Chamber of Accounts (Oberrechnungskammer) and by the Economic Council (Volkswirthschaftsrath) .The Supreme Chamber of Accounts was founded in 1714 byFrederic William I. Its members have the tenure and responsibility of judges. Its president is appointed by the Crown on thenomination of the Ministry of State; its other members are appointed by the Crown upon the nomination 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 ofincome and expenditure from all departments; and the oversightof the state debt and of the acquisition and disposition of property by the state. It watches, in brief, the detailed administration of the finances, and is the judicial guardian of the lawsconcerning revenue and disbursem*nt.579. The Economic Council . - The Economic Council considers proposals for laws or ordinances affecting weighty economic interests whichfall within the domains of the three ministries of Trade and Commerce, ofPublic Works, and of Agriculture. Such proposals, as well as the proposals for the repeal of such laws and ordinances may be submitted to itsdebate before going to the king for his approval. It is also privileged toconsider the question how Prussia's votes shall be cast upon such mattersin the Bundesrath. Of course, however, its part in affairs is merely consultative. It is composed of seventy-five members appointed by the kingfor a term of five years, forty-five of this number being appointed upon thenomination of various chambers of commerce, mercantile corporations,and agricultural unions.580. The Ministers in the Legislature. The king— or, moreproperly, the Administration is represented in the legislativehouses by the ministers, who need not be members in order toattend and speak on the public business .581. The Landtag: the House of Lords. The Prussian Landtag, or Legislature, consists of two houses, a House of Lords(Herrenhaus) and a House of Representatives (Abgeordnetenhaus) .The House of Lords might better be described as a house of classes .284 THE GOVERNMENTS OF GERMANY.It contains not only hereditary members who represent rights ofblood, but also life members who represent landed properties andgreat institutions, and officials who represent the civil hierarchy.There sit in it princes of the blood royal nominated to membership by the king; the heads of families once royal whose domainshave been swallowed up by Prussia; certain greater noblemenappointed by the Crown, together with eight others elected bytheresident landowners of the provinces; the four chief officials ofthe province of Prussia (the Supreme Burggraf, the High Marshal, the Grand Master of the Teutonic Order, and the Chancellor); and a great number of life members appointed by the kingupon the presentation of various bodies: certain evangelicalfoundations, namely, certain colleges of counts, and of landholders of great and ancient possession, the nine universities,and forty-three cities which have received the right of nomination. The king may, besides, issue special summons to sit in theHouse of Lords to such persons as he thinks worthy. There isno limit placed upon the number of members, the only restriction concerns age: members must be at least thirty years old.-582. At present ( 1897 ) the number of members is about three hundred.Of these quite one-third are of the landed nobility, and almost as manymore are the nominees of the landed classes; so that the House stands forloyalty to the Crown and opposition to liberal change.583. The House of Representatives, though in a sense representing every Prussian twenty-five years of age who is notspecially disqualified to vote, is not constituted by a direct popular franchise, or even by an equal suffrage. The vote is indirectand 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 representone-third of the taxable property of the district; each of theseclasses selects by vote a third of the number of electors to whichthe district is entitled; and the electors so chosen elect themembers of the House of Representatives.581. The Electoral System. One elector is chosen for every twohundred and fifty inhabitants; the voting is not by the ballot, but is public ,and an absolute majority of the electors is required to elect . The totalnumber of members of the House is 433. The term is five years. AnyTHE GOVERNMENTS OF GERMANY. 285Prussian who is thirty years of age and in full possession of civil rightsmay be chosen. In case a vacancy occur in the House, no choice ofelectors is necessary. Once chosen, the electors are competent to actthroughout the legislative term.585. It need hardly to be remarked that the division of the primaryvoters into classes according to the amount of taxes they pay gives a preponderance to wealth. The three classes are of course very unequal innumbers. It requires a comparatively small number of rich men to represent one-third of the taxable property in a district; it takes a considerablylarger number of the well-to-do to represent another third; and the lastthird will be represented by the great majority of the inhabitants ofthe district. For the classes are not constituted with a view to distributing the small taxpayers and equalizing the classes numerically. Thosewho pay most taxes constitute the first class; those who pay less, thesecond; those who pay least or none, the third; and it may thus verywell happen that a very small number of persons elects a third of theelectors.586. Equality and Competence of the House. The consentof both Houses is necessary to the passage of a law, and theystand upon a perfect equality as regards also the right of initiative in legislation , except that all financial measures mustoriginate in the lower house, and that the upper house can passupon the budget, which must be presented first to the House ofRepresentatives, only as a whole. The Lords cannot amend thebudget in part when it comes up to them: they must accept orreject it entire.587. The King's Power of Adjournment and Dissolution. -Theking may adjourn the House of Representatives for a period not exceeding thirty days, once during any one session without its consent. Hemay also dissolve it. When a dissolution is resorted to he must order anew election within sixty days, and the newly elected House must assemblewithin ninety days. (Compare sec . 415. )588. Local Government. The organization of local government in Prussia is rendered complex by a mixture of historicaland systematic elements: it is compounded of old and new, ofthe creations of history and the creations of Stein and Gneist.Stein's hand is even more visible in local organization in Prussiathan in the organization of the central ministries . More conservative than the Constituent Assembly and Napoleon in France, hedid not sweep away the old provinces of Prussia, whose bounda-286 THE GOVERNMENTS OF GERMANY.ries, like those of the French provinces of the old régime, wereset deep in historical associations. The twelve provinces weregiven a place, a function of superintendence, - in the new system established. The country is, indeed, divided into Districts(Bezirke) corresponding in general character and purpose withthe French Departments; but these Districts are grouped under asuperintendent provincial organization . There are, therefore, inPrussian local organization (1) the Province, (2) the GovernmentDistrict, (3) the Circle (Kreis) or County, and (4) the townshipand the town. The township and the town are, as we shall see,coördinate, standing, not in subordination to each other, but inthe same rank of the series .589. The usual organs of local government throughout all the series ofthe Prussian system are "first, a representative body with an exclusivecontrol over the economic portion of the communal business; secondly,an executive board with an exclusive control over the public portion of thecommunal business; thirdly, mixed committees, composed of members ofboth bodies, for the ordinary management of the affairs of the community; fourthly , the division of the communal area into administrative districts under overseers responsible to the executive board. " 1590. The Province . There are in the Province two sets ofgovernmental organs: one of which represents the state and itsoversight, the other the Province and its self-government.(1 ) The state is represented by a Superior President and a Provinzialrath associated with him. The original purpose in retaining the provincial organization was to secure broad views ofadministration through officials charged with the oversight ofextended areas and so elevated above the near- sightedness of localroutine and detail. Nearer to the particulars of local administration than the minister at Berlin, but not so near as the officialsof the Government Districts, the provincial representatives ofthe state are charged with the care " of all such affairs as concernthe entire province or stretch beyond the jurisdiction of a single[district] administration . " These are such matters as affect1 R. B. D. Morier, Cobden Club Essays ( 1875) on Local Government andTaxation, p. 433.2 Schulze, Das Staatsrecht des Königreichs Preussen (in Marquardsen'sHandbuch), p. 63.THE GOVERNMENTS OF GERMANY. 287imperial interests or the whole Prussian state; the concerns ofpublic institutions whose functions extend beyond a District;insurance companies; extensive plans of improvement; road andschool management, etc. In exercising most of these functions.the provincial authorities act, however, not through officers oftheir own, but through the District Administrations. There lies.with the Superior President, also, the duty of overseeing districtadministration, the provincial tax directors, and the generalCommission for the regulation of the relations between landlordsand tenants. He represents the central government, too, in allspecial, occasional duties, and under all extraordinary circ*mstances. He has, besides, initial jurisdiction in cases of conflict between District Administrations, or between such Administrationsand specially commissioned officials not subject to their orders.591. The extraordinary powers of the ' Superior President ' are illustrated by the fact that, in case of serious civil disturbance, of war or thedanger of war, he is authorized to assume the whole authority of administration, local as well as general, within the Province.592. In overseeing the District Administration, however, he has noexecutive, but only advisory , powers. He is merely the eye of the Ministries at Berlin, advising them of all matters needing their action. Likethe French Prefect, he is the servant of all Ministries alike, though mostdirectly and intimately associated with the Ministry of the Interior.593. The defect of the provincial organization in Prussia is said to belack of vitality. Critics like Professor Gneist thought that it rendered thesystem of local government cumbrous without adding to its efficacy. Itis too much restricted to gratuitous advice, and too little authorized totake authoritative action.594. The Provinzialrath, the administrative Council associatedwith the Superior President, consists, besides the President orhis representative as presiding officer, of one professional civil.official of high rank, appointed by the Minister of the Interior,practically for life, and of five lay members chosen by the Provincial Committee for a term of six years. The assent of the Provinzialrath is necessary to every ordinance issued by the SuperiorPresident.595. (2) The organs representing the Province and its self- government are the Provincial Landtag, the Provincial Committee,and the Landeshauptmann or Landesdirektor. In a Prussian law288 THE GOVERNMENTS OF GERMANY.concerning local government the province is described as "acommunal union established with the rights of a corporation forself-government of its own affairs . " The provincial legislativebody, the Landtag, is composed of representatives elected fromthe Circles or Counties by the Diets of the Circles: for, whenlooked at from the point of view of self- government, the Provinceis a union of Circles, not of Districts: the Districts, as we shallsee, are organs of the central government only. The functionsof the Landtag lie within the narrow field of such matters as theapportionment of taxes among the Circles (which in their turnapportion them among individuals) , the examination of the localbudget, the care of provincial property, and the election of certain officials, though it is at liberty to take cognizance of anything that is of local concern.596. It may also, on occasion, give its opinion on bills concerning theProvince and on other matters referred to it, for an expression of opinion ,by the authorities at Berlin . The Superior President may be present atit* sessions and may annul all acts in which it oversteps its jurisdiction .Its by-laws are subject to the Crown's approval, as are also many of itsvotes of appropriation; and the king may dissolve it.597. The Landtag elects the Provincial Committee and theLandeshauptmann, who are the executive organs of provincial selfgovernment. The Landeshauptmann and the Committee standrelated to each other very much as do the Superior President andProvinzialrath, or the French Prefect and the Prefectural Council:the Landeshauptmann is the executive, the Committee the advisory organ of local self- administration, though it in effectdirects the action of the Landeshauptmann in most matters .598. The spheres of the representatives of the state and of the representatives of local self-government are quite sharply distinguished in Prussia. The Provincial Committee and the Landeshauptmann havenothing to do with the general administration: that is altogether in thehands of the Superior President and the Provinzialrath, who on theirpart have nothing to do with local self- government. The sphere of localself-government, though narrow, is somewhat more guarded against theconstant interference of the central authorities in Prussia than in France.(Compare sec. 454. )1 Schulze, Das Staatsrecht des Königreichs Preussen ( in Marquardsen'sHandbuch) , p. 85.THE GOVERNMENTS OF GERMANY. 289599. Communal Estates. - In some Provinces there still exist certain corporations, representing the old organization by ' estates ' of independent districts, which retain their landtag, ' their separate property,and a small part of their privileges. They constitute rural poor-unions,and play a limited part in local administration according to the sharplyexplicit laws of incorporation under which they now exist . They are ,however, being gradually abolished or transformed by special enactments.Their German name is Kommunal-standische Verbände, which may betranslated, Unions of Communal Estates.600. The Government District (Regierungsbezirk) .-Unlikethe Province, the Government District has no organs of selfgovernment: it is exclusively a division of state administration .Its functionaries are the principal, - it may even be said the universal, — agents of the central government in the detailed conductof administration: they are charged with the local managementof all affairs that fall within the sphere of the Ministries of theInterior, of Finance, of Trade and Commerce, of Public Works,of Agriculture, of Ecclesiastical and Educational Affairs, and ofWar, exclusive, of course, of such matters as are exceptionallyentrusted to officers specially commissioned for the purpose . Inbrief, they serve every ministry except the Ministry of Justice.601. Collectively the functionaries of the District are calledthe ' Administration ' ( Regierung), and their action is for the mostpart collegiate, i.e. , through Boards. The exception to this rule.concerns matters falling within the province of the Ministry ofthe Interior. That Ministry acts in the District, not through aboard of officials, but through a single official, the President ofthe Administration (Regierungspräsident) . In dealing with allother matters the action is collegiate; but the Boards are notindependent bodies: they are divisions (Abtheilungen) of the'Administration ' taken as a whole, and in certain affairs of general superintendence the ' Administration ' acts as a single council (im Plenum) . Each Board is presided over by a ' SuperiorAdministrative Councillor ' ( Oberregierungsrath); and that onDomains and Forests has associated with it a special functionaryknown as the Forest- master. The members of the ' Administration ' are all appointed by the central government, which placesupon the Boards whose functions require for their proper discharge a special training certain so-called " technical members ":290 THE GOVERNMENTS OF GERMANY.for instance, school experts, medical experts, road-engineers, andtechnically instructed forest commissioners .602. These Administrations ' have taken the place of the old-time Warand Domains Chambers of which I have spoken ( sec. 565) , and which, likethe Administrations, acted through Boards as a sort of universal agencyfor all departments of government. It is only since 1883 that the affairsof the Interior have been given into the sole charge of the President of theAdministration . Before that date they also were in the hands of a Board.603. " Every head of a department, as well as every Rath and assessor,is bound each year to make a tour through a portion of the district, tokeep an official journal of all he sees , to be afterwards preserved amongstthe records of the Board, and thus to make himself practically acquaintedwith the daily life and the daily wants of the governed in the smallestdetails. " (Compare sec. 563. )604. The President of the Administration (Regierungspräsident)is the most important official in the Prussian local service. Notonly does he preside over the ' Administration, ' the general andmost important agency of local government; he is also equippedfor complete dominance. He may, upon occasion, annul thedecisions of the ' Administration ' or of any of its Boards withwhich he does not agree, and, in case delay seems disadvantageous,may himself command necessary measures. He may also, if hewill, set aside the rule of collegiate action and arrange for thepersonal responsibility of the members of the ' Administration, 'whenever he considers any matter too pressing to await the meeting and conclusions of a Board, or, if when he is himself presentwhere action is needed, he regards such an arrangement as necessary. In brief, he is the real governing head of local administration . The jurisdiction of the ' Administration ' covers suchmatters as the state taxes, the churches, the schools, and thepublic domain.605. The District Committee. Although, as I have said, theGovernment District is not an area of self- government, a certainpart in the oversight of governmental action in the District isgiven to lay representatives chosen by the provincial agents ofthe people. A District Committee (Bezirksausschuss) , composed1 Morier (Cobden Club Essays) , p. 422.2 Schulze ( in Marquardsen) , p. 64.THE GOVERNMENTS OF GERMANY. 291of two professional members (one of whom must be qualified forjudicial office, the other for the higher grades of the administrative service ) appointed by the king for life, and of four memberschosen by the Provincial Committee (sec. 597) for a term of sixyears, is allowed an oversight of such matters as it has beenthought best to put under lay supervision. The President of theAdministration is ex officio a member of the Committee and usually presides over its sessions . All orders or arrangements whichhe wishes to make with regard to local police are subject to itsconfirmation, and all questions regarding the control of subordinate local authorities fall to it. More important than its administrative functions are the judicial functions with which it hasbeen recently invested . Since 1883 the District Committee hasbeen the Administrative Court of the District (sec. 628) . Whenacting in this capacity the Committee is presided over by its judicial member, and the President of the Administration does notsit with it.606. The Government Districts number thirty-five, and are grouped, asI have said, within the twelve Provinces.607. The Circle ( Kreis) . In the Circle, as in the Province,there emerges a double set of functions: there is the state administration and, alongside of it, the narrower function of self- government. This double set of functions is performed, however,by a single set of functionaries: by a professional officer knownas the Landrath, associated with a Circle Committee (Kreisausschuss), which acts by delegation for the Diet of the Circle (Kreistag) , the consultative and supervisory authority. There are not,as in the Province, one council and one executive for the state,another council and another executive for the locality.608. The Landrath and the Circle Committee. -The Landrathstands upon a peculiar footing: his office is ancient and retainssome of its historical features . Originally the Landrath represented the landed gentry of various districts of Brandenburg; hewas appointed upon their nomination and in a sense representedtheir interests . In some parts of Prussia traces of this right ofpresentation to the office by the landowners still remain; andin almost all parts of the kingdom the privilege of nomination292 THE GOVERNMENTS OF GERMANY.has been transferred to the Circle Diet, as heir of the control onceexercised by the local lords of the soil. The Landrath is, therefore, formally, the representative of the locality in which heofficiates . In reality, however, he is predominantly the agent ofthe state, serving both the District Administration and the departments at Berlin. He is appointed by the Superior Presidentof the Province in which the Circle lies, and is always a professional officer who has passed, by examination, into the highergrades of the civil service. He is chief of police within theCircle, and superintendent of all public affairs. The Circle Committee is associated with him in the administration of his officeand organized under his presidency. It consists, besides himself,of six members chosen by the Circle Diet. It constitutes theAdministrative Court of the Circle (sec. 628) , hearing appealsfrom the acts of subordinate officials as well as supervising administrative action.609. The Diet of the Circle represents, not the people, butgroups of interests, is based upon the economical and socialrelations of the people. Each Circle includes all towns lyingwithin it which have less than 25,000 inhabitants, and representation in the Diet is divided between town and country. Thecountry representation, in its turn, is divided between the ruralCommunes and the greater landowners.610. The cities elect representatives either singly or in groups; ifsingly, through their magistrates and councils acting together; if in groups,through electors who assemble under the Presidency of the Landrath. As'greater landowners ' are classed all those who pay, in their own right, 75thalers annual land or building tax; and these are organized for electoralpurposes in Unions ( Verbände). The rural Communes elect in groupsthrough electors. The term of members of the Circle Diet is six years.Cities having more than 25,000 inhabitants constitute separate Circles, andcombine in their town governments both Circle and Commune under the forms of city government.611. The Circle the Basis of Local Government. A moment'sreview of the electoral arrangements which underlie Prussianlocal government as I have outlined it will show how literallythe whole structure, so far as it is a system of self- government,rests upon the electoral organization of the Circle . The Diet ofTHE GOVERNMENTS OF GERMANY. 293.the Circle is the only representative body I have yet named whichis chosen by the qualified voters of the locality: and it is notchosen directly. The larger towns elect their quota of membersthrough their councils, while the smaller towns unite and choosethrough electors. The rural Communes elect in groups, throughelectors . The greater landowners send their separate quota. Andthen from the Circle Diet, when once it is chosen, proceed, indirectly, all the other lay bodies of administration in the largerareas. It nominates the Landrath, elects the Circle Committee,and unites with the Diets of the other Circles of the Province inchoosing the provincial Landtag. The provincial Landtag, inturn, elects the Landeshauptmann and the Provincial Committee.The Provincial Committee elects five out of the seven membersof the Provinzialrath and four out of the six members of the District Committee. Each Provincial Committee chooses, on anaverage, two District Committees. It is in only a very restrictedsense a system of popular control in local affairs . It is a longway from the people to the District Committee.-- 612. The Magisterial District ( Amtsbezirk) . The rural Communesare grouped in Magisterial Districts containing each about fifteen hundredinhabitants; and each District is presided over by a Reeve or Justice(Amtsvorsteher or Amtsmann) who is appointed by the king upon thenomination of the Circle Diet, usually from among the landowners of thelocality. The Reeve's term is six years. He is given charge of the policeof the District, and is entrusted with the administration of the laws forthe relief of the poor and the preservation of health. As police commissioner he is put over the mayors of the several Communes within his district. He acts under the supervision of the Committee of the Circle.613. The Rural Commune (Landgemeinde) . The larger ruralCommunes act through small representative assemblies or councils, while the less populous regulate their affairs by mass meeting. In some Communes the executive officer is known as' mayor, ' in others as ' village judge, ' in still others as ' president . 'In most localities he is assisted by one or more aids or assessors .The electoral privilege is based upon the three- class system ofvoting described in secs. 583-585, except that those who pay notaxes at all are usually excluded from the franchise . The powersof the Communes cover all matters of strictly local interest.294 THE GOVERNMENTS OF GERMANY.-—614. The City Communes (Stadtgemeinde) . Among the CityCommunes there is great variety of organization . In some cities.there is a single executive, a single Burgomaster, perhapsassisted by certain Boards; in others the Burgomaster has colleagues; in still others the magistracy is collegiate, is itself aBoard. In all there are councils more or less directly representative of the people. In the cities, as in every other unit of localadministration, the subjects of finance, police, and the militaryare largely controlled from Berlin; and in these branches ofadministration the city governments are agencies of the centralgovernment. They thus have a double character; they are atone and the same time representatives of the authorities at thecapital and of the citizens at home. When acting as agencies ofstate administration they are, of course, responsible to the centralDepartments at Berlin.615. There is in Prussian local organization none of the extreme, therather forced uniformity so noticeable in France, where no difference ismade between rural Communes and City Communes, only the greatercities, like Paris and Lyons, being given a special organization. In Prussiahistorical and other grounds of variety have been freely observed.-616. General Principles of Prussian Town Government.Although without uniformity of structure, town government inPrussia has certain uniformities of principle at its basis whichrender it a striking example of active self- government. Themayor of a Prussian city is a trained official, taken from the professional service; but he is not the Executive; he is simply president of the executive . There is associated with him a board ofAldermen most of whose members are elected from the generalbody of citizens, to serve without salary, but an importantminority of whose members are salaried officials who, like themayor, have received a thorough technical training in their variousbranches of administration , and whose tenure of office is in effectpermanent: and this board of Aldermen is the centre of energyand rule in city government. But it acts under check. A town.council represents the citizens in the exercise of a control overthe city budget, and citizens not of the Council as well as Councilmen act with the Aldermen in the direction of executive business. The Aldermen do their administrative work in Committees,THE GOVERNMENTS OF GERMANY. 295and act always in association with certain delegations of towncouncilmen and certain ' select citizens ' named by the council .In the wards of the larger towns the Aldermen command also theassistance of local committees of citizens, by whom the conditionsand needs of the various districts of the town are familiarlyknown. Thus in the work of poor relief, in the guardianship ofdestitute orphans, in education, and in tax assessment ' selectcitizens ' commonly reinforce the more regular, the official, corpsof city officers . This literal self- government, which breaks downthe wall of distinction between the official and the non- officialguardian of city interests and presses all into the service of thecommunity, is not optional; it is one of the cardinal principlesof the system that service as a ' select citizen ' is to be enforced bypenalties, by increasing the taxes of those who refuse to serve.617. Berlin " governs itself through more than ten thousand men belonging to the wealthier part of the middle classes ." The citizens chosen forward work or for consultation with the central committees of Aldermenand town-councillors include merchants, physicians, solicitors, manufacturers, head-masters of public schools , and like representative persons.618. The three-class system of voting described in secs . 583, 584 , and585 obtains also in all municipal elections in Prussia, so that weight in theelectoral control of city affairs is proportioned to tax- assessment. Onethird of the elected Aldermen and town- councillors represent the wealthyclass, one-third the middle class, one-third the ' proletariat. ' It is saidthat in Berlin the first class contains " less than two per cent of the voters,the second class less than thirteen per cent, and the third eighty- six percent. " The arrangement breeds a deep discontent in the lowest class andthey largely refrain from voting.619. The Administration of Justice. The Prussian courts ofjustice, like those of the other states of the Empire, have thegeneral features of their organization and jurisdiction prescribedby imperial law (sec . 556) . They are Prussia's courts; but theyalso serve as courts of the Empire; Prussian law commands onlytheir personnel and their territorial competence. At the head ofthe system sits the supreme court of the Empire (Reichsgericht),to which the courts of all the other states stand subordinated.²¹ Professor Gneist, Contemporary Review, Vol. 46 ( 1884) , p . 777.2 Prussia is vouchsafed by imperial law the privilege of retaining her ownsupreme court; but she has not availed herself of the permission .296 THE GOVERNMENTS OF GERMANY.In each Province there is a Superior District Court ( Oberlandesgericht), and, next below it, a District Court (Landgericht) . Ineach magisterial District there is an Amtsgericht.620. The Amtsgericht, which is the court of first instance inminor civil cases, consists of one or of several judges, accordingto the amount of business there is for the court to despatch: forwhen there is more than one judge the work is not handled bythem together, but separately; it is divided, either logically orterritorially.621. The higher courts, the District Court, and the SuperiorDistrict Court consists each of a number of judges . At thebeginning of each year, the full bench of judges in each courtdetermine a division of the business of the court among themselves, constituting themselves in separate ' chambers ' for separate classes of cases. There is always a ' civil chamber ' and a' criminal chamber, ' and often a chamber for commercial cases(Kammer für Handelssachen) . Each chamber has its own president and its own independent organization .622. Minor criminal cases are tried in sheriffs ' courts (Schöffengerichte) sitting in the Magisterial Districts; more serious offencesby the criminal chamber of the District Court; all grave crimesby special jury- courts (Schwurgerichte) which sit under the presidency of three judges of the District Court.623. An appeal from a sheriff's court on the merits of the case can go nofurther than the District Court. Appeals on the merits of the case fromthe criminal chamber of the District Court are not allowed; but a casecan be taken from that court on the ground of the neglect of a rule of lawto the Superior District Court, and on other legal grounds to the ImperialCourt, for revision.624. The nomination of all judges rests with the king: butthe appointment is for life and the judges stand in a position.of substantial independence. The Minister of Justice, however,completely controls all criminal prosecutions: for no criminalprosecution can be instituted except by the states-attorneys whor*present the government in the several courts, and these holdtheir offices by no permanent tenure, but only at the pleasure ofthe Minister.THE GOVERNMENTS OF GERMANY. 297625. Purity in the administration of justice is sought to be secured bypublic oral proceedings. Until a very recent period all proceedings inthe Prussian courts were written the plea and the answer constituted thesuit. Now public oral proceedings are made imperative.626. The organization of justice in Prussia provides for the assumption by the state of a certain ‘ voluntary ' jurisdiction , some of which,such as the exercise of guardianship and the probate of wills ( which latteris made a function of the Amtsgericht) are quite familiar to the practiceof other countries; but others of which, such as an oversight over certainfeudal interests, are somewhat novel in their character. The systemknows also certain officially commissioned Arbitrators ( Schiedsmänner)and certain trade judges, which are in some respects peculiar to itself.627. Administrative Courts (Verwaltungsgerichte) . The samedistinction between administrative and ordinary courts of justice.that we have observed in France obtains also in Prussia ( sec. 468 ) .Here again appears the organizing hand of Stein. He establishedfor Prussia the principle that cases arising out of the exercise ofthe state's sovereignty should be separated in adjudication fromcases between private individuals and should be allotted to specialcourts. Such are cases of damage done to an individual throughthe act of an administrative officer, or cases of alleged illegalaction on the part of a public official, in brief, all cases of conflict between the public power and private rights, as well as allquestions between administrative authorities.-628. The courts charged with this jurisdiction are, ( 1 ) in theCircle, the Circle Committee (sec. 608), presided over, as in dealing with other matters, by the Landrath, and in the cities whichthemselves constitute Circles, the City Committee (Stadtausschuss) ,consisting of the Burgomaster as president and four members,all of whom must be qualified for judicial service or for the highergrades of administrative office, elected by the magistracy of thecity, acting collegiately, for a term of six years. ( 2) In theGovernment District, the District Committee (sec. 605) , to whosepresidency when sitting in this capacity, the king may appoint,as representative of the President of the Administration, oneof the members of the ' Administration ' under the title of Director of the Administrative Court (Verwaltungsgerichtsdirektor) .(3) The Superior Administrative Court in Berlin ( Oberverwaltungsgericht), whose members are appointed by the king, with the con-298 THE GOVERNMENTS OF GERMANY.sent of the Council of Ministers, for life . This court stands uponthe same footing of rank with the supreme federal tribunal, theReichsgericht. Its members must be qualified, half of them forhigh judicial, half for high administrative office . It acts, likethe other courts, in divisions or ' senates, ' each of which has itsseparate organization; and these sections come together only forthe settlement of certain general questions. (Compare sec. 468. )629. The Court of Conflicts ( Gerichtshoffür Kompetenz-konflikte).-Between the two jurisdictions, the ordinary or private and theadministrative, stands, as in France, a Court of Conflicts. Itconsists of eleven judges appointed for life (or for the term oftheir chief office, in case they act ex officio); and of these elevensix 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 oradministrative offices . (Compare sec. 475. )630. The Prussian Courts and Constitutional Questions. — ThePrussian courts have no such power of passing upon the constitutionalityoflaws as is possessed by the courts of the United States. They cannotgo beyond the simple question whether a law has been passed, or, inadministrative cases, an official order issued , in due legal form.SOME REPRESENTATIVE AUTHORITIES.Borgeaud, Ch. , “ Adoption and Amendment of Constitutions," trans. byC. D. Hazen and J. M. Vincent, N.Y., 1895.Burgess, J. W., "Political Science and Constitutional Law, " 2 vols. ,N.Y., 1891.Dawson, W. H., “ Germany and the Germans." 2 vols. , 8vo. London,1894.66 Demombynes, G., Constitutions Européennes. ” 2 vols . , 8vo . Paris, 1883 .See Vol. II., pp. 487 and 733.Dupriez, L., “ Les Ministres dans les principaux pays d'Europe et d'Amérique, " 2 vols . , Paris, 1892 .Goodnow, F. J., " Comparative Administrative Law. " 2 vols . , 8vo. N.Y.,1893.Grais, Graf Hué de, " Handbuch der Verfassung und Verwaltung inPreussen und im deutschen Reiche. " 10th ed. , Berlin, 1895.James, E. J. , " The Federal Constitution of Germany." (Translation . )Am. Acad. Social and Political Science, Phila. , 1890 .THE GOVERNMENTS OF GERMANY. 299Laband, Paul, “ Das Staatsrecht des deutschen Reiches, " 3 vols . , Tübingen, 1876-1882 . Now in third edition . Also, under same title, abriefer commentary in Marquardsen's “ Handbuch des OeffentlichenRechts der Gegenwart. " Freiburg in B., 1883 .Lowell, A. L., " Governments and Parties in Continental Europe, " 2 vols.,Boston, 1896 .Mejer, Otto, " Einleitung in das deutsche Staatsrecht." 2d ed . Freiburg in B., 1884 .Morier, R. B. D., in Cobden Club Essays on " Local Government andTaxation." 1875.Rönne, L. v., " Das Staatsrecht des deutschen Reiches." 2d ed. , Leipzig, 1876. And " Das Staatsrecht der preussischen Monarchie. "5 vols. 4th ed. , 1881-1883.66 Sarwey, O von, " Allgemeines Verwaltungsrecht, " in Marquardsen'sHandbuch des Oeffentlichen Rechts der Gegenwart. " Freiburg inB., 1884, pp. 112-117.Seeley, J. R., " Life and Times of Stein . " Part I. , Chap . V.; Part III . ,Chap. I .; Part V., Chaps. II. , III.Schulze, Hermann, " Das preussische Staatsrecht, auf Grundlage desdeutschen Staatsrechtes," 2 vols . , Leipzig, 1872-1877 . Also " DasStaatsrecht des Königreichs Preussen, " in Marquardsen's " Handbuch." Freiburg in B., 1884.Stengel, K. von, “ Wörterbuch des deutschen Verwaltungsrechts, ” 2 vols. ,Freiburg in B., 1889-1890 .Turner, Sam'l Epes, " A Sketch of the Germanic Constitution, " N.Y.,1889.VIII.THE GOVERNMENTS OF SWITZERLAND.631. Feudalism in Switzerland. Until the beginning of thefourteenth century the towns and communes of the country nowcalled Switzerland were all held fast in the meshes of the feudal system. Real vassalage, indeed, such as the low countries ofFrance and Germany knew, had never penetrated to all the valleys of the Alps; many a remote commune had never known anything but a free peasantry; and hardly anywhere near the heartof the great mountains had feudal fealty meant what it meantelsewhere. Still great neighbor lords and monasteries had swepteven these mountain lands at least nominally within their overlordships, and most of the Swiss Cantons of to-day representpieces of old feudal domains.632. First Movements towards Cantonal Independence. — In1309, however, began the process which was to create the Switzerland of our time. In that year the Cantons of Schwyz, Uri, andUnterwalden, lying close about the lake of Lucerne, won from theEmperor Henry VII. the recognition of their freedom from allsupremacy save that of the Empire itself. They had already,about the middle of the thirteenth century, drawn together intoa league which was to prove the seed of the modern Confederacy.That Confederacy has two distinguishing characteristics. It hasbrought down to us, through an almost unbroken tradition, therepublican institutions of the Middle Ages; and it has by slowprocesses of cautious federation drawn together into a real unioncommunities the most diverse alike in point of race, of language,and of institutions without destroying their individuality.633. The Processes of Confederate Growth . — In its briefestterms the story is this. The Cantons broke from the toils of the300THE GOVERNMENTS OF SWITZERLAND. 301feudal system while still in possession of those local liberties.which the disintegrateness of that system gave leave to growwherever courageous men could muster numbers enough to asserttheir independence; having a common cause against the feudalpowers about them, they slowly drew together to each other'ssupport; and, having allied themselves, they went on to show theworld how Germans, Frenchmen, and Italians, if only they respecteach the other's liberties as they would have their own respected,may by mutual helpfulness and forbearance build up a union atonce stable and free. Several centuries elapsed before the development was complete, for the Confederation, as finally made up,consisted of two very different elements: of strong and for themost part aristocratic free cities and of quiet rural peasantdemocracies . It was necessarily a long time before even commondangers and common interests brought proud Cantons like Bernand aristocratic cities like Geneva into cordial relations withSchwyz, Uri, and Unterwalden, the humble originators of theConfederacy. But circ*mstances constrained and wisdom prevailed: so that union was at last achieved.634. French Interference. The year 1513 may be taken asmarking the close of the period during which the Confederacywon the place it was always to keep among the powers of Europe.In that year the League was joined by the last of those thirteenGerman Cantons which were to constitute its central membershipdown to the French Revolution . It was not till 1848, however,that its constitution was put upon its present foundations; andnot till 1874 that that constitution received at all points its present shape. In the meantime events of the greatest magnitudegave direction to Swiss affairs . The great powers had recognizedthe independence of Switzerland in the Treaty of Westphalia,1648. The thirteen original Cantons had received great Frenchcities, like Geneva, to the west, and various Italian lands, to thesouth, either into close alliance or into fixed subjection. TheFrench Revolution had sent French troops into Switzerland, insupport of a fruitless attempt to manufacture out of the alwaysstiffly independent Cantons, hitherto only confederates, a compact and centralized ' Helvetic Republic, ' after the new modeljust set up in unhappy France (1798-1802) . Napoleon had inter-302 THE GOVERNMENTS OF SWITZERLAND.vened (1803-1814) for the purpose of both loosing these artificialbonds and creating a new cement for the League in the shape ofa common allegiance to himself. And, in 1815, the pressure ofthe French power being removed, reaction had come. The irritated Cantons, exasperated by the forms of a government not oftheir own choosing, had flung apart, to the practice of principlesof cantonal sovereignty broader, extremer even than those uponwhich they had based their Union before 1798. And then reaction, in its turn, brought its own penalties. Troubles ensuedwhich read very much like those, so familiar to Americans,which forced a strong federal government upon the UnitedStates.635. The Sonderbund War. It was, however, differences ofreligious, not of political, opinion whichwere in Switzerland theoccasion of the strife which was to bring union out of disunion.After the power of Napoleon had been broken, the Congressof Vienna had sought to readjust all the arrangements that hehad disturbed, and Swiss affairs had not been overlooked . TheCantons were induced to receive Geneva, Valais, Neuchâtel, andthe territories hitherto held as dependencies, into full confederate membership, and to agree to a Pact (known as the Pact of1815) which gave to the League, with its increased membershipof twenty-two Cantons, a new basis of union . One of the clausesof that Pact contained a solemn guarantee of the rights and privileges of the monasteries still maintained in the Roman CatholicCantons , and upon that guarantee were based the hopes of allparties for peace among the members of the League. But theguarantee was broken down. The wave of democratic reformswept steadily and resistlessly through Switzerland during therevolutionary period of 1830-1848, and where the Protestant andRoman Catholic parties were nearly equal in popular force threatened not a few of the oldest foundations of the medieval church.The crisis was first felt in Zürich, where the excesses of a radicalparty temporarily in control brought about, in 1839, a violentreaction. The next year saw the disturbance transferred toAargau. There the anti- Catholic party, commanding, during aperiod of constitutional revision, a narrow popular majority, andexasperated by the violent opposition tactics of the clerical party,THE GOVERNMENTS OF SWITZERLAND. 303forced a vote in favor of the abolition of the eight monasteriesof the Canton. The Diet of the Confederation was thereuponasked by the aggrieved party whether it would permit so flagranta breach of the Pact of 1815. It was forced by a conflict ofinterests to a compromise, agreeing to the abolition of four ofAargau's eight monasteries. This was in August, 1843. Thenext month saw the formation of a separate League (Sonderbund)by the seven Roman Catholic Cantons, Schwyz, Uri, Unterwalden, Luzern, Freiburg, Valais, and Zug. The deputies of theseCantons were, however, slow in withdrawing from the Diet, andthe Diet was reluctant to come to open strife with its recalcitrantmembers. Four years this league within a league was permittedto continue its obstructive agitation . But at last, in November,1847, war came, -a sharp, decisive contest of only eighteen days'duration, in which the seceded Cantons were overwhelmed andforced back to their allegiance.- 636. The New Constitution . Constitutional revision followedimmediately. The Pact of 1815 was worn out: a strong and progressive constitution had become a necessity which not even theparty of reaction could resist or gainsay. By the Constitution of1848 there was created, out of the old discordant Confederationof States (Staatenbund) the present federal State (Bundesstaat) .That Constitution, as modified and extended by the important revision of 1874, is the present Constitution of Switzerland.637. Character of the Constitution . --The federal governmentthus established has many features which are like, as well asmany which are very unlike, the familiar features of our ownnational system. It has had, since 1874, a federal SupremeCourt, which is in many important fields of jurisdiction the highest tribunal of the land; and it has had since 1848 a Legislatureconsisting of two branches, or Houses, the one representative ofthe people, the other representative of the states of the Confederation. The popular chamber is called the ' National Council '(der Nationalrath), the federal senate, the 'Council of States '(der Ständerath) . The former represents the people as a whole;the latter, the States as constituent members of the Confederation.304 THE GOVERNMENTS OF SWITZERLAND.638. Much of the resemblance of these arrangements to our own is dueto conscious imitation. The object of the reformers of 1848 and 1874 wasnot, however, to Americanize their government, and in most respects itremains distinctively Swiss.639. Nationality and State Sovereignty. Much as such institutions resemble our own federal forms, the Constitution ofSwitzerland rests upon federal foundations such as our own government had during the first half century of its existence ratherthan upon national conceptions such as have dominated us sincethe war between the States . The Swiss Constitution does indeedexpressly speak of the Swiss nation, declaring that "the Swiss.Confederacy has adopted the following Constitution with a viewto establishing the union (Bund) of the Confederates and to maintaining and furthering the unity, the power, and the honor of theSwiss nation ": and not even the war between the States put theword nation into our Constitution . But the Constitution ofSwitzerland also contains a distinct and emphatic assertion ofthat principle of divided sovereignty which is so much less familiar to us now than it was before 1861. It speaks of the Confederation as formed by " the people of the twenty- two sovereignCantons," and it explicitly declares that " the Cantons are sovereign, so far as their sovereignty is not limited by the federalConstitution, and exercise as such all rights which are not conferred upon the federal power "; and its most competent interpreters are constrained to say that such a constitution does noterect a single and compacted state of which the Cantons are onlyadministrative divisions, but a federal state, the units of whosemembership are themselves states, possessed, within certainlimits, of independent and supreme power. The drift both ofSwitzerland's past history and present purpose is unquestionably, towards complete nationality; but her present Constitutionwas a compromise between the advocates and the opponents ofnationalization; and it does not yet embody a truly nationalorganization or power.640. - Large Constitutional Grants. At the same time, thegrants of power under the Swiss Constitution have from the firstbeen both larger and less definite than those contained in theConstitution of the United States. It contains such indefiniteTHE GOVERNMENTS OF SWITZERLAND. 305grants as these: that the federal legislature shall have power topass " laws and resolutions concerning those subjects which theConfederacy is commissioned by the federal Constitution to actupon "; to control the foreign relations of the Cantons; to guarantee the constitutions and territories of the Cantons; to providefor the internal safety, order, and peace of the country; to adoptany measures " which have the administration of the federal Constitution, the guaranteeing of the cantonal constitutions, or thefulfilment of federal duties for their object "; and to effect revisions of the federal Constitution.641. It adds to such federal powers as we are familiar withthe authority to regulate religious bodies and monastic orders,to control the manufacture and sale of alcoholic liquors, to establish general sanitary regulations in the case of certain diseases,to control the construction and operation of all railroads, to regulate labor in factories, to provide for the compulsory insuranceof workmen, and to legislate throughout the whole field of commercial law. The federal government is given, besides, a largepower of superintendence. It has supervision of streams andforests, and of the more important roads and bridges; it has theright to disapprove of and annul the press laws of the severalcantons, and their regulations with regard to the acquisition ofresidence and the franchise in the communes; and it exercisesin many another matter a general oversight and guardianship.642. Guarantee of the Cantonal Constitutions. -The Swiss federal Constitution is more definite in guaranteeing to the Cantonstheir constitutions than our federal Constitution is in guaranteeingto the States " a republican form of government. " The guaranteeis made to include the freedom of the people and their legal andconstitutional rights; the exercise of those rights under representative or democratic forms; and the revision of any cantonalconstitution whenever an absolute majority of the citizens of theCanton desire a revision.This guarantee ' is not used or understood in Switzerland as it is in theUnited States. Here the sanction and support of the federal governmentis taken for granted, unless the constitutional arrangements of a State are challenged as unrepublican. In Switzerland it is expected that eachCanton shall seek the explicit sanction or guarantee of the federal government for its constitution, and even for each amendment as added.306 THE GOVERNMENTS OF SWITZERLAND.THE CANTONAL GOVERNMENTS.643. The Cantonal Constitutions and the Federal Constitution.-So deeply is Swiss federal organization rooted in cantonalprecedents, that an understanding of the government of the Confederation is best gained by studying first the political institutions of the Cantons. At almost all points the federal governmentexhibits likeness to the governments of the Cantons, out of whoseunion it has grown. As our own federal Constitution may-besaid to generalize and apply colonial habit and experience, so theSwiss Constitution may be said to generalize and apply cantonalhabit and experience: though both our own Constitution and thatof Switzerland have profited largely by foreign example also .644. In some respects the Swiss Constitution is more conservative - or, if you will, less advanced· - than the Constitution of theUnited States. Those who have fought for union in Switzerlandhave had even greater obstacles to overcome than have stood inthe way of the advocates of a strong central government in thiscountry. Differences of race, of language, and of religion, aswell as stiffly opposing political purposes, have offered a persistent resistance to the strengthening and even the logical development of the prerogatives of the federal power. The Constitutionof the Confederation, therefore, bears many marks of compromise.It gives evidence at certain points of incomplete nationalizationnot only, but even of imperfect federalization . Cantonal institutions are, consequently, upon a double ground entitled to befirst considered in a study of the governments of Switzerland.Both their self- assertive vitality and their direct influence uponfederal organization make them the central subject of Swisspolitics.-645. Position of the Legislative Power. The development ofpolitical institutions has proceeded in the Swiss Cantons ratheraccording to the logic of practical democracy than according tothe logic of the schools . The Swiss have not, for one thing,hesitated to ignore in practice all dogmas concerning the separation of legislative, executive, and judicial functions. I say ' inpractice '; for in theory such distinctions are observed. TheTHE GOVERNMENTS OF SWITZERLAND. 307constitutions of fully half the Cantons say explicitly that legislative, executive, and judicial functions shall be kept fundamentally distinct; but in the practical arrangements actually madethe line of demarcation is by no means sharply drawn. Theleading principle according to which they proceed in all politicalarrangements is, that in every department of affairs the peoplemust, either immediately or through representatives, exercise adirect, positive, effective control. They do not hesitate, therefore, to give to their legislative bodies a share both in the administration and in the interpretation of laws; and these bodies areunquestionably the axes of cantonal politics .-646. A Single House. A very great variety of practice marksthe organization of government in the Cantons. Each Canton hashad its own separate history and has, to a certain extent, workedout its own individual political methods. But there is one pointof perfect uniformity, the Legislature of each Canton consistsof but a single House. The two Houses of the federal legislature have been made after foreign, not after Swiss, models . InUri, Unterwalden, Glarus, and Appenzell this single lawmakingbody is the Landsgemeinde, the free assembly of all the qualifiedvoters, the folk-moot; but in the other Cantons the legislativeassembly is representative. Representatives are elected by directpopular vote in all the Cantons, and in almost all by the secretballot.647. Elections are for a term which varies from one year to six in thedifferent Cantons, the rule being a term of from three to four years. Thenumber of representatives bears a proportion to the number of inhabitantswhich also varies as between Canton and Canton, the average being aboutone to every 994 inhabitants.¹648. In most of the Cantons the legislative body is called the GreatCouncil (Grosse Rath) - the executive body being the Lesser Council.In some it is called the Cantonal Council (Kantonsrath); in others, theLandrath.-649. Functions of the Cantonal Legislatures. The functionsof these councils have the inclusiveness characteristic of Swisspolitical organization. Not only are they entrusted with such1 Orelli, Das Staatsrecht der schweizerischen Eidgenossenschaft (Marquardsen's Handbuch) , pp. 100 , 101 .308 THE GOVERNMENTS OF SWITZERLAND.legislative power as the people are willing to grant; they also, asa rule, select many of the administrative officers of the Canton,and exercise, after such election, a scrutiny of administrativeaffairs which penetrates to details and keeps executive actionlargely within their control. It is a recognized principle of cantonal government, indeed, that the executive body - executivepower, as we shall see, being vested in a board or commission,not in an individual is a committee of the representatives ofthe people, - a committee of the legislative Council. To thatcouncil they are responsible, as the selectmen of a New-Englandtown are responsible to the town-meeting (secs. 1218, 1219) .650. The Executive Power is collegiate in all the Cantons, isexercised, that is, not by a single individual or by several individuals acting independently of each other, but by a commission.This commission is variously called in the different Cantons. Insome it is known as the "Landammann and Council, " in othersas the " Estates-Commission " (Standeskommission) , in some asthe "Smaller Council "; but in most as the 66 AdministrativeCouncil " (Regierungsrath) . Its term of office varies in the different Cantons with the term of the legislative body, with which itis always coincident; but the custom is reëlection , so that thebrief tenure does not in practice result in,too frequent changes inexecutive personnel. The members of the executive have alwaysin the mountain Cantons been chosen by the people themselves;in the others they were formerly elected always by the legislativecouncil — whence the name, " smaller council, " which they bearin some Cantons. Now, however, direct election by the peoplehas been substituted in eleven Cantons, and only eight retain thepractice of election by the Great Council. Whether elected bythe people or by the Great Council, however, the AdministrativeCouncil remains, in function, a committee of the legislative body.Its members freely take part in the business of legislation andin the debates of the Great Council. It in fact originates mostof the measures of each session, and is looked to for guidance inevery matter of consequence. It does not resign if outvoted uponits proposals. It is, on the contrary, regarded in most of theCantons rather as a business head than as a body of party leaders,1 Orelli, p. 99.THE GOVERNMENTS OF SWITZERLAND. 309and its membership is usually made up, not from one, but fromthe several political parties of the Canton.651. The Administrative Council usually consists of from five to sevenmembers, though in the Canton of Berne it contains nine. It has provednecessary of late years to give over the attempt to act in all matters as aBoard, and it has become usual to divide the work of the Council amongdepartments. But these departments are under the general direction ofthe Council as a whole, and the administration of a canton has usually avery real coherence and an intimate coördination.652. The People's Control over Legislative Action. - Althoughthe people have delegated their legislative powers to representative chambers in all the Cantons except those which still retaintheir primitive Landsgemeinden, they have nevertheless kept intheir own hands more than the mere right to elect representatives.The largest of the Cantons (Berne) has but a little more than halfa million inhabitants; the majority of the Cantons have less thanone hundred thousand apiece; and the average population, takingbig and little Cantons together, is only about one hundred andtwenty thousand. Their average area scarcely reaches six hundred and forty square miles. The people of such communitiesstand, as it were, in the midst of affairs . They are in a sensealways at hand to judge of the conduct of the public business.Their feelings and their interests are hom*ogeneous, and there isthe less necessity to part with their powers to representatives.In seven of the German Cantons a certain number of citizens (thenumber varies from one to twelve thousand) can demand a popular vote upon the question whether the Great Council shall bedissolved or not; and if the vote goes in the affirmative thechamber's term is ended and a new election takes place at once.If this method of control is no longer used, it is because moreeffective methods have been substituted. In almost all the Cantons the question of constitutional revision can be brought topopular vote upon petition, and the revision, if undertaken, maygo any length in changing or reversing the processes of legislation.653. The Popular Veto. -In some of the smaller Cantons,again, the people are given a right of Veto. It is provided that,within a certain length of time after the publication of a measure310 THE GOVERNMENTS OF SWITZERLAND.passed by the Council (generally about a month) , a popular voteupon the measure may be forced by the petition of some fiftycitizens (the number varies of course in different Cantons) andthe measure be made to stand or fall according to the decision ofthat vote. The law is rejected, however, only when an actualmajority of all the registered voters cast their ballots against it.Those who do not vote are reckoned as favorable to the law.654. The Initiative: Imperative Petition.-So far has theapparent logic of democracy been carried in Switzerland that thepeople exercise in several ways a direct part in lawmaking.The right of petition, which is recognized in every country wherepopular rights exist at all, has become in Switzerland a right ofinitiative in legislation. In every Canton except Geneva thepeople have been granted the right to initiate constitutional reforms by petition; and in all except Luzern, Freiburg, andValais the same right has been established with regard to therevision or enactment of ordinary laws. In the Confederationpetitions signed by fifty thousand voters have, since 1891, beenimperative in respect of the introduction of constitutional amendments. In the case of ordinary legislation, specific laws may beproposed by petition, in all the Cantons except the three I havenamed; the legislature must submit the law proposed to the popular vote; and its adoption at the polls puts it upon the statutebook. In the case of constitutional amendments, it is generallyprovided that either general or specific changes may be proposed:that is, that the changes may be proposed either in general termsor in definitive and final form, ready for adoption . If the proposal is couched only in general terms, the legislature may eitherformulate the desired amendment at once and submit it to thepeople, or, if it disapprove of the change proposed, it may firstsubmit the general question to the vote of the electors. If, in thelatter event, the vote be in the affirmative, the legislature mustproceed to formulate the necessary article or articles and thesemust be submitted in their definitive shape once more to thepopular verdict. If the petition itself embody a specific changealready drawn and formulated, the amendment must go in thatshape to the vote, and its adoption makes it part of the fundamental law. The number of signatures required for these im-THE GOVERNMENTS OF SWITZERLAND. 311perative petitions varies with the size of the Cantons, a veryusual number being from five to six thousand. Petitions demanding a change in the fundamental law of the Confederationmust be signed, as we have seen, by not less than fifty thousandvoters.655. The Initiative has been very little used, having given place inpractice, for the most part, to the Referendum. Where it has been employed it has not promised either progress or enlightenment, leadingrather to doubtful experiments and to reactionary displays of prejudicethan to really useful legislation. In both of the great Cantons of Zürichand Berne, the most populous and influential in the Confederation, it hasbeen used to abolish compulsory vaccination. It was established for theConfederation only six years ago ( 1891 ) , and has been used in federallegislation only to aim a blow at the Jews, under the disguise of a lawforbidding the slaughtering of animals by bleeding.656. The Referendum. Both Veto and Initiative in practiceyield precedence to the Referendum. In every Canton of theConfederation, except Freiburg only, the right of the people tohave all important legislation referred to them for confirmationor rejection has now been, in one form or another, established bylaw . In the smaller Cantons, which have had, time out of mind,the directest forms of democracy, this legislation by the peopleis no new thing; they have always had their Landsgemeinden,their assemblies of the whole people, and the legislative function of their Councils has long been only the duty of preparinglaws for the consideration of the people. Among the Cantonswhich have representative institutions, on the other hand, theReferendum assumes a different form . In about one-half of themlaws must be submitted to the vote of the electors only when theirsubmission is demanded by petition, with the requisite number ofsignatures. This is called the ' optional ' or ' facultative ' Referendum. In the rest of the Cantons (always excepting Catholicand conservative Freiburg) substantially all substantive changesin the laws must be submitted to the electors, and the action oftheir legislatures is periodically voted upon. This is known asthe 'obligatory ' Referendum. The Federation itself has had theoptional Referendum since 1874. The Referendum is, moreover,everywhere obligatory, whether in the Confederation or in the312 THE GOVERNMENTS OF SWITZERLAND.several Cantons, in the case of every constitutional change. Administration and the ordinary budget are usually excepted fromits operation, and it is made to apply, within the field of ordinarylegislation, only to laws of a general character; but in most ofthe Cantons it is made to cover also all appropriations of an unusual character or above a certain sum; and in Valais it appliesonly to certain financial measures . x657. Origin of the Referendum. —The term Referendum is as oldas the sixteenth century, and contains a reminiscence of the strictly federal beginnings of government in two of the present Cantons of the Confederation, Graubünden, namely, and Valais. These Cantons were notat that time members of the Confederation, but merely districts alliedwith it (zugewandte Orte) . Within themselves they constituted veryloose confederacies of Communes (in Graubünden three, in Valaistwelve) . The delegates whom the Communes sent to the federal assembly of the district had to report every question of importance to theirconstituents and crave instruction as to how they should vote upon it.This was the original Referendum . It had a partial counterpart in theConstitution of the Confederation down to the formation of the presentforms of government in 1848. Before that date the members of thecentral council of the Confederation acted always under instructions fromtheir respective Cantons, and upon questions not covered by their instructions, as well as upon all matters of unusual importance, it was their dutyto seek special direction from their home governments. They were saidto be commissioned ad audiendum et referendum. The Referendum asnow adopted by almost all the Cantons bears the radically changed character of legislation by the people. Only its name now gives testimony asto its origin.¹658. Its Operation. — In respect of constitutional changes the use ofthe Referendum is not peculiar to Switzerland . In that field its use inthis country is older than its use in Switzerland. And in its application to ordinary laws it is modern even in Switzerland. Its earliestadoption was in 1852, and it was not until the decade 1864-1874 that itwon its way into the constitutional practice of the greater Cantons. Itsuse, therefore, is everywhere new, and the experience by which we mustjudge of it is recent and partial. It is still tested only in part. It has ledin most cases to the rejection of radical legislation, even to the rejectionof radical labor legislation , such as the ordinary voter might be expectedto accept with avidity. The Swiss populations, being both hom*ogeneousand deeply conservative , have resisted , as perhaps no other people have,the infection of modern radical opinion . They have shown themselves1 Orelli, p. 104.THE GOVERNMENTS OF SWITZERLAND. 313Theapt to reject, also, complicated measures which they do not fully comprehend, and measures involving expense which seems to them unnecessary.And yet they have shown themselves not a little indifferent, too.vote upon most measures submitted to the ballot is usually very light;there is not much popular discussion; and the Referendum by no meanscreates that quick interest in affairs which its originators had hoped to seeit excite . It has dulled the sense of responsibility among legislators without in fact quickening the people to the exercise of any real control inaffairs.659. Local Government: the Districts. -Local government inthe Cantons exhibits a twofold division, into Districts and Communes. The District is an area of state administration, theCommune an area of local self- government. The executive functions of the District, the superintendency of police, namely, andthe carrying into effect of the cantonal laws, are entrusted, as arule, not to a board, but to a single officer, -a Bezirksammannor Regierungs-Statthalter, who is either elected by popular votein the District or appointed by one of the central cantonal councils, the legislative or the administrative. Associated with thisofficer, there is in some Cantons a District or county Councilchosen by vote of the people.-660. The Gemeinde, or Commune, enjoys in Switzerland adegree of freedom in self- direction which is possessed by similarlocal organs of government hardly anywhere else in Europe. Itowns land as a separate corporation, has charge of the police ofits area, of the relief of its poor, and of the administration of itsschools, and acts in the direction of communal affairs through aprimary assembly of all its freemen which strongly reminds oneof the New-England town-meeting (sec. 1218) . Besides itsactivities as an organ of self- government in the direction ofstrictly local affairs, the Commune serves also as an organ ofcantonal administration, as a subdivision of the District. Thusit is an electoral district, and a voting district in the case of aReferendum; and in so far as it is used as a district of the Canton it is subject to the supervision of the local authorities of thestate.661. There is by no means a fixed and uniform organizationin the local government of the Cantons. In the Communes of314 THE GOVERNMENTS OF SWITZERLAND.the French Cantons, for example, the people do not themselvesact directly in affairs, in township meeting, as the people of theGerman Cantons do, but through an elected council, and theorganization of local business suggests the cantonal organizationupon a small scale. In all the Communes alike, however, as inthe Cantons, the executive power is vested in a board of officials ,presided over by a Hauptmann, a Gemeindeamman, a Syndic, or aMaire. This communal or municipal council is chosen, in theGerman Cantons, by the freemen in assembly, in the French Cantons by the representative body to which supervision in affairsand the enactment of all local regulations is entrusted. TheHauptmann has often separate powers of his own, apart from andindependent of his colleagues; but in most matters he is merelythe presiding officer of the administrative council, and executiveaction is collegiate.662. Citizenship in Switzerland is associated very closely with theCommune, the immediate home- government of the citizen, - the primary and most vital organ of his self-direction in public affairs . TheCommune is , so to say, the central political family in Switzerland; it is toit that the primary duties of the citizen are owed. Naturalization is regulated by federal law; but the full rights of citizenship can be conferredonly by cantonal and communal law.THE FEDERAL GOVERNMENT.663. The Federal Executive. - In no feature of the federalorganization is the influence of cantonal example more evident.than in the collegiate character of the Executive. The executivepower of the Confederation, like the executive power of each Canton, is vested not in a single person, as under monarchical orpresidential government, but in a board of persons. Nor doesSwiss jealousy of a too concentrated executive authority satisfyitself with thus putting that authority into commission ': it alsolimits it by giving to the legislative branch of the government,both in the Cantons and in the federal system, an authority ofcorrection as regards executive acts such as no other country hasknown. The share of the legislative branch in administrativeaffairs is smaller, indeed, under the Federal Constitution thanTHE GOVERNMENTS OF SWITZERLAND. 315under the laws of the Cantons; but it is large even in the federalsystem, and it seems inherent in Swiss political thought.664. The executive commission of the Confederation is knownas the Federal Council (Bundesrath) . It consists of seven members elected for a term of three years by the two houses of thefederal legislature acting together in joint session as a FederalAssembly (Bundesversammlung) . The Constitution forbids thechoice of two of its seven members from one and the same Canton: they must represent seven of the twenty-two Cantons. TheCouncil is organized under a President and Vice- President chosenby the Federal Assembly, from among the seven councillors , toserve for a term of one year, the Constitution insisting upon theextreme democratic doctrine of rotation. Neither President norVice-President can fill the same office for two consecutive terms;nor can the President be immediately nominated to the office ofVice- President again upon the expiration of his term. There isnothing to prevent the Vice-President succeeding the President,however; and it has hitherto been the uniform practice to followthis natural and proper line of promotion.665. The Federal Assembly may elect to the Council any Swiss citizenwho is eligible to either Chamber of the Legislature. As a matter of fact,however, they almost invariably make their choice from amongst themembers of the Chambers, though an election to a place in the executivebody necessitates a resignation of the legislative function. Berne andZürich have always been represented in the Bundesrath, and are consid- ered to have acquired a sort of prescriptive right to places on it . Vaudhas almost always had a member, too; and Aargau was represented continuously till 1891 .666. The choice of the Federal Assembly in constituting the executivehas hitherto been admirably conservative. Some of the more prominentmembers of the Council have been retained upon it by repeated reëlectionfor fifteen or sixteen years; one has served for thirty years; and thosewho have left its membership have generally done so of their own accord.Only twice, indeed, since 1848, have members who wished reëlection beenrefused it.¹667. The Federal Assembly fills all vacancies in the membership of theCouncil, electing, however, only for the unexpired term.668. The three-years term of the Council is coincident with the threeyears term of the National Council, the popular branch of the Legislature.1 Westminster Review, Vol. 129, p. 207.316 THE GOVERNMENTS OF SWITZERLAND.At the beginning of each triennial term of this lower House, the twoHouses come together as a Federal Assembly and elect ( in practice reelect ) the Federal Council. If the National Council be dissolved beforethe close of its three-years term, the election of the Bundesrath must berenewed by the two Houses upon the assembling of the new National Council. The Bundesrath is thus not, strictly speaking, elected for three years,but for the term of the National Council, whatever that may turn out to be.669. The precedence of the President of the Council is a merelyformal precedence: he is in no sense the Chief Executive. Herepresents the Council in receiving the representatives of foreignpowers; he enjoys a somewhat enhanced dignity, being addressedin diplomatic intercourse as His Excellency '; and he receives alittle larger salary than his colleagues receive; but he is in allpractical matters merely the Council's chairman.6670. The Executive and the Legislature. The members of theFederal Council, though they may not be at the same time members of either House of the Legislature, may attend the sessionsof either House, may freely take part in debate, and may introduce proposals concerning subjects under consideration: mayexercise most of the privileges of membership, except the right tovote. They are expected, indeed, to prepare and guide the business of the Houses, and every bill is submitted to them for anopinion before its passage. They thus to a certain extent occupya position resembling that which a French or English ministryoccupy; but there is this all-important difference: the English orFrench ministers are subject to ' parliamentary responsibility, ' —must resign, that is, whenever any important measure which theyfavor is defeated; whereas the Swiss ministers are subject to nosuch responsibility. Defeat in the Legislature does not at allaffect their tenure. They hold office for a term of years, not fora term of legislative success; and they are the servants of theHouses, not their leaders. They have habitually been chosenfrom both the chief parties in the Confederation, and since 1891a third political group has been represented among them . Theyare not expected to speak the same opinions even on the floorof the Houses. But they are expected to act in harmony in allbusiness, and to mediate between extreme views in matters ofdeliberation.THE GOVERNMENTS OF SWITZERLAND. 317671. There have been two cases since the establishment of the Council,in 1848, two cases, that is, in fifty years, - of resignation from theCouncil on the ground of disagreement in political opinion, - but twoonly.1672. The Executive Departments. - The Council acts as a bodyof Ministers . It was the purpose of the Constitution that allexecutive business should be handled by the Council as a whole,but of course such collegiate action has proved practically impossible: it has been necessary to divide the work among sevenDepartments. Each member of the Council presides over a Department, conducting it much as an ordinary minister would undera Cabinet system, though there is a somewhat closer union of theseveral Departments than characterizes other systems, and agreater degree of control by the several ministers over suchdetails of administration as the permanent ' subordinates ofCabinet ministers generally manage, by virtue of possession, tokeep in their own hands, to the restraint and government of transient political chiefs. All important decisions emanate from theCouncil as a whole; and, so far as is practicable, the collegiateaction contemplated by the Constitution is adopted.673. The seven Departments, as organized by a law taking effect January 1 , 1888, are ( 1 ) of Foreign Affairs, (2 ) of Justice and Police, ( 3 ) of theInterior, ( 4 ) of War, ( 5) of Finance and Imposts, (6 ) of Industry andAgriculture, and ( 7) of Posts and Railways. The department of ForeignAffairs is now separated from the presidency, with which it was formerlyalways associated , so that greater continuity of policy is now possible inall departments.2 The arrangement of administrative business in Departments is effected in Switzerland, as in France and Germany, by executivedecree, and not by legislative enactment, as in the United States.674. It is considered the capital defect of this collegiate organizationof the Swiss executive, combined as it is with the somewhat antagonisticarrangement of a division of executive business among Departments, thatit compels the members of the Council to exercise at one and the sametime two largely inconsistent functions. They are real, not simply nominal, heads of Departments, and are obliged as such to give their time andattention to the routine, the detail, and the technical niceties of administration; and yet as a body they are expected to impart to the administration as a whole that uniformity, breadth, and flexibility of policy that can1 Westminster Review, Vol. 129, p. 207 .2 See Hiltz , Politisches Jahrbuch der Schweiz, 1887, p. 778 .318 THE GOVERNMENTS OF SWITZERLAND.be imparted only by those who stand aloof from detail and routine andcommand the wider views of general expediency. They are called to beboth technical officials and political guides. It has been suggested bythoughtful Swiss publicists that it would be vastly better to give the Departments permanent heads and leave to a board of ministers such as thepresent Council only a general oversight. Political and administrativefunctions require different aptitudes , must be approached from very different points of view, and ought seldom to be united in the same persons.¹675. Mixed Functions of the Executive. - Swiss law, as I havesaid, makes no very careful distinction between executive, legislative, and judicial functions. Popular jealousy of executivepower has resulted, alike in the cantonal systems and in the system of the Confederation, in the vesting of many executive functions either wholly or in part in the lawmaking bodies, and avery singular confusion between executive and judicial functionshas resulted in the possession by both the executive and the legislative bodies of prerogatives which should, on any strict classification, belong only to regularly constituted courts of law. It is,consequently, somewhat difficult to get a clear summary view ofthe rôle played in Swiss federal affairs by the central executiveCouncil. Its duties give it a touch both of legislative and ofjudicial quality.676. (1 ) It stands closely connected with the Legislaturebecause of its part in shaping legislation . The Council both originates proposals in the Houses and gives its opinion upon proposals referred to it, either by the Houses or by the Cantons. Itrenders annual reports to the Houses concerning its conduct ofadministration and the condition of the Confederation, which giveit opportunity to urge upon them necessary measures of reform oramelioration; and which, being freely debated, give the membersof the Houses, also, an opportunity to press their own criticismsand suggestions with reference to the conduct of the administration. It presents the budget of the Confederation also to theHouses and leads in its debates of financial legislation. It is, inbrief, the intimate servant and in part the authoritative guide ofthe Legislature, both taking and giving advice. The Houses may1 Orelli, Das Staatsrecht der schweizerischen Eidgenossenschaft (Marquardsen's, Handbuch) , p. 36.THE GOVERNMENTS OF SWITZERLAND. 319reverse whatever action of the Executive they please, even thoughit be merely administrative in character; but they usually suggest,they do not often condemn action already taken.677. (2) In the exercise of several of its most important dutiesthe action of the Council is essentially judicial. It is empoweredto examine the agreements made by Cantons among themselvesor with foreign governments and to judge of their conformitywith federal constitutional law, withholding its approval at itsdiscretion . In like manner there are other cantonal laws andordinances whose validity is made dependent upon its approval;and to a very limited extent, a jurisdiction like that entrusted tothe Federal Court in hearing complaints concerning breaches offederal law is given it. It has also authoritative oversight of theadministration of federal law by the cantonal officials. There arenot many federal officials; federal law is for the most part executedby local officers, the Federal Council supervising.678. Here are some of the topics touching which the authoritativeopinion of the Council may be taken: cantonal school affairs; freedom oftrade and commerce, and the interpretation of contracts with foreignstates which concern trade and customs-levies, patent rights, rights of settlement, freedom from military service, free passage, etc.; rights of settlement within the Cantons; freedom of belief; validity of cantonal elections ,votes, etc.; gratuitous equipment of the militia.¹679. (3) Its strictly executive functions are, however, its mostprominent and important functions. It appoints all officerswhose selection is not otherwise specially provided for by law;it of course directs the whole executive action of the government,controlling federal finance, and caring for all federal interests;equally of course, it manages the foreign affairs of the Confederation. Besides these usual executive and administrative functions,it exercises, however, others less common. It is the instrument of the Constitution in making good to the Cantons thefederal guarantee of their constitutions. It executes the judgments of the Federal Court, and also all agreements or decisionsof arbitrators concerning matters in dispute between Cantons.2In cases of necessity it may call out and itself direct the movements of such cantonal troops as are needed to meet any sudden1 Orelli, pp. 43, 44. 2 Ibid. , p. 34.320 THE GOVERNMENTS OF SWITZERLAND.danger, provided the Legislature is not in session to command suchmeasures, and provided the call is for not more than two thousandmen or for a service of more than three weeks. If more men orlonger service seem necessary, the Legislature must be called atonce and its sanction obtained. This power of the Council to callout troops to meet a pressing peril of war or riotous disorder is alogical part of the general duty which is imposed upon it of guarding both the external and the internal safety and order of theConfederation, a duty which embraces the general police functionof keeping the peace.680. The Army. —The Confederation can maintain no standing army;only the Cantons can maintain troops in time of peace; and even theycannot keep more than three hundred men apiece without the consent ofthe Confederation.681. Detail of Federal Supervision . —The federal government isdirected by the Constitution to see to it that the Cantons provide free ,compulsory, non- sectarian education for their people, and that the political rights and liberties of individuals are respected by cantonal law. It islikewise authorized, in case of internal disturbances, to intervene to preserve the public order upon its own initiative, whenever the cantonalauthorities are unable to call upon it for assistance. It has been held,moreover, that it may exercise many of these extensive powers of oversight and direction upon the initiative of individuals whose rights areaffected, as well as upon the initiative of the cantonal governments themselves; and its powers of superintendence and intervention have showna marked tendency to grow from generation to generation. The peoplehave come to feel the Cantons in many things too small to do without theaid and countenance of the federal power.682. Execution of Federal Law. Although the supervisory powersof the federal government are very great, however, its active administrative duties are not many. The federal laws are for the most part executedby cantonal officials, under the superintendence of the Federal Council.In all that concerns foreign affairs the federal government acts for itselfand through its own officials; it directly administers the custom house, too,and the postal and telegraph systems of the country. It has charge ofits own arsenals; and it is entrusted with the management of the government alcohol monopoly and of the national polytechnic school . But inalmost all other matters it is served by cantonal officials. Even the Federal Court has no executive officers of its own. ( Comp. secs. 531 , 538, 539. )683. Appeal in Judicial -Cases. Following the example of thecantonal constitutions, which provide for a very absolute depend-THE GOVERNMENTS OF SWITZERLAND. 321ence of the executive upon the representatives of the people andfreely neglect, in practice, the careful differentiation of legislativefrom administrative functions, the Federal Constitution of 1848allowed an appeal in all cases from the Federal Council to theFederal Assembly (Bundesversammlung) . The constitutional revision of 1874, which had as one of its chief objects the development and strengthening of the judiciary of the Confederation,transferred many appeals to a Federal Court, but it left theaction of the Federal Council no less subject to the Assemblythan before, and it did not exclude the Legislature from judicialfunctions. It was, indeed, provided that the Federal Court,rather than the Assembly, should in most cases hear appealsfrom the Federal Council; but it was also arranged that certain' administrative ' cases might be reserved to the Assembly byspecial legislative action. Religious and confessional ' questionshave, accordingly, been retained by the Legislature —questionswhich would seem to be as far as possible removed from thecharacter of administrative matters.684. It seems to have been the conscious purpose of the more advancedreformers in 1874 to bring the Federal Court as near as possible in character and functions to the Supreme Court of the United States; but theywere able to realize their purpose only in part. The most important prerogative of our own Court, its powers, namely, of constitutional interpretation, was denied the Federal Court in Switzerland. Most constitutionalquestions are decided by the Legislature, except when specially delegatedto the Court by legislation . The chief questions of this nature now takencognizance of by the Court are disputes as to constitutional rights betweencantonal and federal authorities.685. The Federal Chancellor. The office of Federal Chancellor isworth nothing as an inheritance of the present from the older Confederation, in whose days of incomplete federalization the Chancellor typifiedthe unity of the Cantons. The Chancellor is elected by the FederalAssembly at the same time and for the same term (three years) as theFederal Council. He is chief clerk of both Houses of the Federal Assembly, is keeper of all the federal records, and exercises a semi-executivefunction as preserver of diplomatic forms and usages. A Vice-Chancelloracts under the Chancellor as Secretary of the Council of States ( Ständerath) , the Chancellor acting chiefly for the popular chamber.-686. The Federal Legislature. Properly speaking, the legislative powers of the Confederation are vested in the Federal322 THE GOVERNMENTS OF SWITZERLAND.Assembly (Bundesvesammlung); but that Assembly consists oftwo distinct Houses, the National Council (Nationalrath) andthe Council of States (Ständerath); and the Houses act separatelyin all strictly legislative matters, coming together as a singleAssembly only for the exercise of certain electoral and judicialfunctions. The two Houses stand in all respects upon an equalfooting: there is no difference of function between them. Theoriginative work of each session -that is, the first handling ofmeasures is divided between them by a conference of theirPresidents at the beginning of the session. The Constitutionrequires that at least one session be held annually: as a matterof practice there are usually two sessions of about four weekseach every year, one beginning in June, the other in December,and a shorter extra session in March. Special sessions may becalled either by resolution of the Federal Council or upon thedemand of five Cantons or of one-fourth of the members of theNational Council. An absolute majority of its members constitutes a quorum in each House.Inese687. Composition of the Houses: I. The National Council.The popular chamber of the Assembly consists of one hundredand forty-seven members chosen from fifty-two federal electoraldistricts (Wahl- Kreise ) in the proportion of one representativefor every 20,000 inhabitants. The federal electoral districts cannot, however, cross cantonal boundary lines and include territoryin more than one Canton. If, therefore, in the apportionment ofrepresentatives among the Cantons, the division of the number ofinhabitants of any Canton by the number 20,000 shows a balanceof 10,000, or more, that balance counts as 20,000, and entitles toan additional representative. Reapportionments are made fromtime to time to meet changes in the number of inhabitants asshown by decennial censuses. If any Canton have less than20,000 inhabitants, it is, nevertheless, entitled to a representative.688. This is the case with the three so-called half- cantons, Obwalden,Nidwalden, and Inner Appenzell, and the ancient canton of Uri. Zug,which has but 23,167, also returns but a single member. Berne, on theother hand, which has 541,051 inhabitants, has twenty- seven representatives, and Zürich, with 351,917 , seventeen; while one other, Vaud, has twelve,and two, St. Gallen and Aargau, have, respectively, eleven and ten.THE GOVERNMENTS OF SWITZERLAND. 323-689. In those electoral districts which send more than one representative as, for instance, in Berne, whose twenty-seven members are sentfrom six districts- candidates are voted for upon a general ticket, eachvoter being entitled to vote for as many representatives as the districtreturns. It requires an absolute majority to elect.690. Every Swiss twenty years of age who is not a clergymanand who is qualified to vote by the law of his Canton may votefor members of the National Council. The term of the NationalCouncil is three years. Elections take place always in October,on the same day throughout the country, and that day is alwaysa Sunday.-691. It is upon the assembling of each new National Council that theelection of the Federal Council takes place ( secs . 665–669) . The threeyears term of the executive Council is thus made to extend from the beginning of the first session of one National Council to the beginning of thefirst session of the next.692. The National Council elects its own officers; but in selecting itsPresident and Vice- President it is bound by a rule similar to that whichlimits the yearly choice of a President of the Confederation. The President or Vice-President of one session cannot be reëlected for the sessionnext following. For the officers of the National Assembly, like the officersof most European law-making bodies, are elected every session instead offor the whole term of the body, as in our House of Representatives andthe English House of Commons.693. II. The Council of States (Ständerath) is composed offorty-four members: two from each of the twenty-two Cantons.It would thus seem to resemble very closely in its compositionour own federal Senate and to represent distinctively the federalfeature of the union between the Cantons. In fact, however, ithas no such clearly defined character: for the mode in which itsmembers shall be elected, the qualifications which they shallpossess, the length of time which they shall serve, the salarywhich they shall receive, and the relations they shall bear tothose whom they represent, in brief, every element of theircharacter as representatives, is left to the determination of theCantons themselves, and the greatest variety of provisions consequently prevails. From some Cantons the members are sentfor one year only; by some for three; by others for four; by stillothers for two. In the Cantons which have the obligatory Refer-324 THE GOVERNMENTS OF SWITZERLAND.•endum they are generally elected by popular vote, as the membersof the National Council are; in those which have representativeinstitutions they are usually elected by the legislative body of theCanton. Differing, thus, from the National Council, as regards atleast very many of its members, only in the fact that every Canton sends the same number as each of the others and chooses theterm for which they shall be elected, the Council of States canhardly be called the federal chamber: neither is it merely asecond chamber. Its position is anomalous and obviously transitional.694. The Council of States elects its own President and Vice-President,but subject to the restriction that neither President nor Vice- Presidentcan be chosen at any session from the Canton from which the Presidentfor the immediately preceding session was taken, and that the office ofVice- President cannot be filled during two successive regular sessions bya member from the same Canton.695. The Cantons, upon enumeration, number, not twenty-two, buttwenty-five, because three of them have been divided into half- cantons, 'namely, Unterwalden, Basel, and Appenzell. The half- cantons send eachone member to the Council of States. The following is a list of the Cantons: Zürich , Berne, Luzern, Uri, Schwyz, Obwalden, Nidwalden, Glarus,Zug, Freiburg, Solothurn , Baselstadt, Baselland, Schauffhausen, OuterAppenzell, Inner Appenzell, St. Gallen, Graubünden, Aargau, Thurgau,Ticino, Vaud, Valais, Neuchâtel, Geneva.-- 696. Functions of the Houses. It may be said, in generalterms, that its Legislature is the supreme, the directing organ ofthe Confederation. It is difficult, therefore, to classify the functions which the Houses exercise, because they extend into everyfield of government; but the following may serve as a distinctarrangement of them: 1. They exercise the sovereignty of theConfederation in its dealings with foreign states, controlling allalliances or treaties with foreign powers, determining questionsof peace and war, passing all enactments concerning the federalarmy, and taking the necessary measures for maintaining theneutrality and external safety of Switzerland. 2. They maintainthe authority of the Confederation as against the Cantons, takingcare to pass all the measures necessary for preserving internalsafety and order and for fulfilling the federal guarantee of thecantonal constitutions, and deciding, upon appeal from the Fed-THE GOVERNMENTS OF SWITZERLAND. 325eral Council, the validity of agreements between the Cantons orbetween a Canton and a foreign power. 3. They exercise thegeneral legislative powers of the Confederation, providing forthe carrying out of the Federal Constitution and for the fulfilment of all federal obligations. 4. They pass upon the federalbudget and control the federal finances. 5. They organize thefederal service, providing for the creation of all necessary departments or offices and for the appointment and pay of all federalofficers . 6. They oversee federal administrative and judicialaction, hearing and acting upon complaints against the decisions of the Federal Council in contested administrative cases.7. With the concurrence of the people, they revise the FederalConstitution.-697. Legislative Procedure. Each House is served in the conductof its business by a President, a Vice- President, and four Tellers . Thesesix officers constitute a ' Bureau, ' whose duty it is not only to count thevotes upon a division , but also to look after absentees, and to appoint suchcommittees as the chambers do not themselves choose to elect. Much ofthe business introduced is referred to committees for detailed consideration; but the Federal Council is the grand committee. All importantlegislation either comes from it or goes to it for final formulation, and itspart is generally a guiding part in debate.698. Revision of the Constitution. When the two Houses canagree concerning a revision of the Constitution, it is effected bythe ordinary processes and under the ordinary rules of legislation ,though it is followed by an obligatory Referendum to the people.But a revision may also be otherwise accomplished. If oneHouse demands particular changes and the other House refusesto assent, or if 50,000 qualified voters call for a revision by petition, the question whether or not a revision shall be undertakenmust be submitted to popular vote; and if there be a majority ofthe whole of such popular vote in the affirmative, new Housesmust be elected and the revision proceeded with. In every casethe amendments adopted by the Houses must be voted upon bythe people and must be accepted by a majority of the people andby a majority of the Cantons also in order to go into force. Inreckoning up the votes by Cantons, on such occasions, the voteof a half-canton counts as half a vote.326 THE GOVERNMENTS OF SWITZERLAND.699. The Federal Referendum. -" Federal laws, as well asgenerally binding federal resolutions, which are not of a pressingnature, shall be laid before the people for their acceptance orrejection upon the demand of 30,000 qualified Swiss citizens orof eight cantons. " Such is the command of Article 89 of theFederal Constitution which establishes for the Confederation the' facultative ' or ' optional ' Referendum (sec. 656).700. The whole detail of the exercise of the Referendum is regulatedby federal legislation. A period of ninety days, running from the date ofthe publication of the law, is set within which the demand for a popularvote must be made. Copies of all federal laws which are subject to Referendum are sent to the authorities of each Canton, and by them published in the Communes. For the Communes are constituted the districtsin which the popular demand is to be made up. That demand mustbe made by written petition addressed to the Federal Council; all signatures must be autographic; and the chief officer of the Commune mustattest the right of each signer to vote. Demands from Cantons for theReferendum are made through the cantonal councils, subject to the rightof the people, under the provisions of the cantonal Referendum, to reversethe action . In case it appears that 30,000 voters or eight Cantons demandReferendum, the Federal Council must set a day for the popular vote;a day which must be at least four weeks later than the resolution whichappoints it.701. Functions of the Federal Assembly. The functions whichthe Houses exercise in joint session , as the Federal Assembly, arenot legislative but electoral and judicial. 1. The Assembly electsthe Federal Council, the federal judges, the Chancellor, and thegenerals of the confederate army. 2. It exercises the right ofpardon. 3. It determines conflicts of jurisdiction between federalauthorities, fulfilling the functions delegated under the Frenchand Prussian constitutions to a special Court of Conflicts (secs.475, 629).702. The President of the National Council presides over the sessionsof the Federal Assembly, and the rules of the National Council for themost part govern its proceedings.703. Administration of Justice: I. The Cantonal Courts.The Cantons are left quite free by the Federal Constitution toorganize their courts as they please. Not even a general uniformity of system is prescribed as in Germany (sec. 556); norTHE GOVERNMENTS OF SWITZERLAND. 327are the cantonal courts subordinated to the Federal Court exceptin certain special cases provided for by statute. It may be said, ingeneral terms, that justice is administered by the Cantons, withrecourse in selected cases to the tribunal of the Confederation.704. There is, however, a certain amount of uniformity in judicial organization throughout Switzerland. There are usually tworanks of courts in each Canton: District Courts (Bezirksgerichteor Amtsgerichte) which are courts of first instance, and a supremeCantonal Court (Kantonsgericht) which is the court of final instance. There are also everywhere Justices of the Peace whoseduty it is, in many places, first to act as mediators in legal disputes, and as magistrates only when they fail as mediators.Petty police cases are heard by the District Courts; but for thehearing of criminal cases there is trial by jury under the presidency of a section of the supreme court justices, or by a specialcriminal court acting without a jury.705. In three of the larger Cantons, Geneva, Zürich, and St. Gallen,there are special Cassation Courts put above the Obergericht. Zürich andGeneva have also special Commercial Courts ( Handelsgerichte) .706. In many of the Cantons the Supreme Court exercises certain semiexecutive functions, taking the place of a Ministry of Justice, in overseeingthe action of the lower courts and of all judicial officers, such as the statesattorneys.707. In most of the cantons, too, the Supreme Court makes annualreports to the legislative Council, containing a full review of the judicialbusiness of each year, discussing the state of justice, with criticisms uponthe system in vogue and suggestions of reform. These reports are important sources of judicial statistics .708. The terms of cantonal judges vary. The usual terms arethree, four, and six years. The judges of the inferior courts areas a rule elected directly by the people: those of the supremecourts commonly by the legislative Council.709. In Berne the legislative Council also elects the Presidents of theDistrict Courts; but this is not the usual practice .710. No qualifications for election to the bench are required by Swisslaw except only the right to vote. But here, as well as in regard to thevery brief terms of the judges, practice is more conservative than the law.To the higher courts, at least, competent lawyers are generally elected;and reëlection is in most cases the rule.328 THE GOVERNMENTS OF SWITZERLAND.711. In Geneva the States- attorney, instead of the Supreme Court, isgiven the general duties of superintendence which, outside of Switzerland,are vested in a Minister of Justice; and in other Cantons similar officersare given prerogatives much more extensive than are usually associatedwith such offices elsewhere.712. II . The Federal Court. --The Federal Court was createdby the Constitution of 1848. Before that time arbitration hadbeen the only form of adjudication between the Cantons. Evenin creating it, however, the Constitution of 1848 withheld fromthe Federal Court all real efficiency: its jurisdiction was of themost restricted kind and was condemned to be exercised underthe active superintendence of the omnipotent Federal Assembly.It was one of the chief services of the constitutional reform of1874 that it elevated the Federal Court to a place of substantialinfluence and real dignity. It still rests with the Houses to determine by statute many of the particular questions which shallbe submitted to the Court; but its general province, as well asits organization, is prescribed in considerable detail by the Constitution. Doubtless the Federal Court, like the Council ofStates, is still in a transitional stage, and will ultimately begiven a still more independent and influential position.-713. The Federal Court consists of nine judges chosen by theFederal Assembly (with due regard to the representation of thethree official languages of Switzerland, German, French, andItalian) 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 Confederation, but atLausanne.714. The Federal Assembly elects, at the same time that it chooses thejudges, nine substitutes also, who sit, as occasion demands, in place of anyjudge who cannot act, and who receive for their occasional services a perdiem compensation.715. The members of the Court may not hold any other office or followany other business during their term as judges; nor can they be membersof any business corporation.716. Seven judges constitute a quorum of the Court. The number ofjudges who sit in any case must always be an uneven number, includingthe president.THE GOVERNMENTS OF SWITZERLAND. 329717. Criminal Jurisdiction of the Federal Court. --- In theexercise of its criminal jurisdiction the Federal Court goes oncircuit. The country is divided into five assize districts (Assisenbezirke), one of which embraces French Switzerland; a second,Berne, and the surrounding Cantons; a third, Zürich and theCantons bordering upon it; a fourth, central, and part of eastSwitzerland; and the fifth, Italian Switzerland.718. The Court annually divides itself, for criminal business, into threebodies: A Criminal Chamber, a Chamber of Complaints, and a Chamberof Appeals. The Criminal Chamber decides at what places in the severalDistricts assizes shall be held. The places selected furnish, at their owncost, a place of meeting. The cantonal police and court officers serve asofficers of this Court. A States-attorney appears for the Federal Councilin all cases.719. Cases in Public Law. The jurisdiction of the FederalCourt covers a great variety of causes. There are (1) Cases inPublic Law. These include disputes between Cantons concerning such matters as the fulfilment of inter- cantonal agreements,the settlement of boundary lines, conflicts of jurisdiction betweenthe authorities of different Cantons, and extradition; also theenforcement of agreements between Cantons and foreign governments; and, most fertile of all, cases involving the constitutionalrights of citizens, whether those rights rest upon the federal orupon a cantonal constitution. Its jurisdiction does not, however,cover questions as to the constitutionality of federal legislation .The federal Houses are the sole judges, under public opinion, oftheir own powers.720. It is considered " the proper and natural province of the FederalCourt " in Switzerland " to defend the people and the citizens againstabuses of power, whether they proceed from federal or cantonal authorities. " Such a province is, however, in the very nature of the case, insusceptible of definite limitations; and the powers of the Federal Court havegradually spread far abroad by reason of the temptations of this vagueprerogative. The most usual and proper cases arising under it are infringements of the federal guarantee to citizens of equality before thelaw, of freedom of settlement, of security against double taxation, of liberty of the press, etc. , but the Court has gone much beyond these. Itsjurisdiction has been extended to the hearing of complaints against cantonal authorities for ordinary alleged failures of justice, such as the Consti-330 THE GOVERNMENTS OF SWITZERLAND.tution can hardly have contemplated giving into the hands of the FederalCourt. The Court has even " brought within the circle of its judgmentscases where the appellant asserts a denial of his claims by a cantonaljudge grounded upon merely obstructive motives or an arbitrary applica- tion of the law. " i721. The Federal Court has also cognizance of contested citizenship cases between Communes of different Cantons. Forcitizenship in Switzerland is first of all of the Commune. TheCommune is, so to say, the unit of citizenship, and it is throughcommunal citizenship that cantonal citizenship is held (sec. 662) .722. (2) Civil Cases in Private Law. - The administrationof justice between individuals under federal laws is left for themost part to the cantonal courts, which thus serve in a sense asfederal tribunals; but if, in any case falling under federal law, asum of 3000 francs be involved, or if the matter involved be notsusceptible of money valuation, an appeal may be taken to theFederal Court from the court of last resort in the Canton. Certain other private law cases, even when they do not involve federal law, may be brought, not by appeal, but in the firstinstance, before the Federal Court upon another principle,because, i.e. , of the nature of the parties to the suit, viz.:Cases between Cantons and private individuals or corporations;cases in which the confederation is defendant; cases betweenCantons; and cases between the Confederation and one or moreCantons (sec. 1306) .-723. Cases of the first two of these four classes can be brought in theFederal Court only if they involve a sum of 3000 francs. Otherwise theymust be instituted and adjudged in the cantonal Courts.724. By agreement of both parties, the jurisdiction of the FederalCourt may be invoked in any case in which the subject of litigation isrendered important by virtue of federal legislation.725. A special railroad jurisdiction, too, has been given by statute tothe Federal Court, covering cases concerning right of way and the rightof eminent domain, and cases in private law between railroads and theConfederation.726. (3) Criminal Cases. The criminal jurisdiction of theFederal Court covers cases of high treason and of outbreak or1 Orelli , p. 42.THE GOVERNMENTS OF SWITZERLAND. 331violence against the federal authorities, breaches of internationallaw, and political offences which were the cause or the result ofdisorders which have necessitated the intervention of the Confederation . It may, however, in the discretion of certain authorities, include a variety of other matters in addition to these.Federal officers , whose breaches of duty are ordinarily punishedupon judgment of the cantonal tribunals, may, by resolution ofthe Federal Council or of the Federal Assembly, be handed overto the Federal Court to be judged. Cases may even, also, be assigned to the federal tribunal by cantonal constitutions or laws,if the Federal Assembly assent to the arrangement.The Chamber of Appeals of the Federal Court takes cognizance, besides,of complaints concerning judgments of the cantonal courts given undercertain fiscal, police, and banking laws of the Confederation.727. The Federal Council: (4) Administrative Cases . — Theadministrative jurisdiction of the Confederation, which is exercised, not by the Federal Court, but by the Federal Council,includes a great number of important cases. It covers questionstouching the calling out of the cantonal militia, the administration of the public- school system of the Cantons, freedom of trade,occupation and settlement, consumption taxes and import duties,freedom of belief and worship, the validity of cantonal electionsand votes, and rights arising out of contracts with foreign powersregarding trade relations, the credit to be given to patents, exemption from military service, freedom of passage, etc. In allthese cases an appeal lies from the Federal Council either to theHouses or to the Federal Court.-728. Inter-Cantonal Judicial Comity. The Swiss Constitution, in close imitation of the provision on the same subject inthe Constitution of the United States, requires that full force andcredit be given the judgments of the courts of each Cantonthroughout the Confederation.SOME REPRESENTATIVE AUTHORITIES.Adams, Sir F. O., and Cunningham, C. D., "The Swiss Confederation ."8vo. London and N.Y., 1889 .Blumer, J. J., "Handbuch des schweizerischen Bundesstaatsrechts, "2 vols . , 1863-1865 . New ed. completed by J. Morel, 1887 .332 THE GOVERNMENTS OF SWITZERLAND.Bluntschli, J. C., " Geschichte des schweizerischen Bundesrechts von denersten ewigen Bünden bis auf die Gegenwart, " 2 vols. , 1819-1852 .2d ed. , Vol. I., 1875.Borgeaud, Chas. , " Adoption and Amendment of Constitutions in Europeand America." Trans. by C. D. Hazen and J. M. Vincent. NewYork and London, 1895. Pp. 258 ff.Coolidge, " Early History of the Referendum, " in the English HistoricalReview, 1891 , p. 674.Curti, E., " Geschichte der schweizerischen Volksgesetzgebung. " 2d ed. ,Zürich, 1885.Demombynes, G., " Les Constitutions Européennes." Ed. 1883, Vol . II. ,pp. 304 ff.Deploige, S., " Le Referendum en Suisse, " Brussels, 1893 .Droz, Numa, " Études et portraits politique. ”Dubs, J., “ Das öffentliche Recht der schweizerischen Eidgenossenschaft."2d ed., Zürich, 1878.Dupriez, L., " Les Ministres dans les principaux pays d'Europe et d'Amérique." 2 vols. , Paris, 1892. Vol. II. , pp. 167 ff.James, E. J. , " The Federal Constitution of Switzerland, " a translation.Publications of the American Academy of Political and Social Science,Philadelphia, 1890.Lowell, A. L., " Governments and Parties in Continental Europe," 2 vols. ,Boston, 1896. Chaps. XI. -XIII.Meyer, Johann, " Geschichte des schweizerischen Bundesrechts, " 2 vols . ,1875-1878 . Supplement 1881. " Eidgenössische Bundesverfassung,Bundesgesetze, und Bundesbeschlüsse, " 1876. " Staatskalender derschweizerischen Eidgenossenschaft, " 1880.Moses, Bernard, "The Federal Government of Switzerland, An Essay onthe Constitution. " A comparative study. San Francisco, 1889 .Orelli, Alois von, " Das Staatsrecht der schweizerischen Eidgenossenschaft." (in Marquardsen's "Handbuch des öffentlichen Rechts " ) ,Freiburg in B., 1885.Rambert, Eugène, " Études historique et nationales, — Les Alpes Suisses, "1889.Richman, Irving B., " Appenzell, Pure Democracy and Pastoral Life inInner Rhoden. A Swiss Study. " London and N.Y., 1895.Snell, Ludwig, " Handbuch des schweizerischen Staatsrechts, " 2 vols.Zürich, 1837-1845 . Contains a great deal of original material forthe period preceding the formation of the present federal government.Stüssi, " Referendum und Initiativ in den Sweizerkantonen, " 1893 .Vincent, J. W., " State and Federal Government in Switzerland," (JohnsHopkins Studies ) , Baltimore, 1891 .Winchester, Boyd, " The Swiss Republic, " Philadelphia and London, 1891 .IX.THE DUAL MONARCHIES: AUSTRIA-HUNGARY -SWEDEN-NORWAY.-729. The Dual Monarchies. — Midway in character betweenunitary kingdoms like France and England and federal stateslike Germany and Switzerland stand the dual monarchies ofAustria- Hungary and Sweden- Norway. Each of these dual governments consists of two kingdoms united under a single monarch, and under neither is there any extensive fusion of thepolitical institutions of the two countries thus united . Each ofthe united kingdoms, under the one government as under theother, keeps its own institutions, and therefore to a large extentit* own individuality: but at the summit of their governmentsa single throne unites them, and in some things a commonmachinery of administration. Very interesting and importantdifferences of law and organization, however, separate AustriaHungary from its northern analogue, Sweden- Norway.AUSTRIA- HUNGARY.730. Austria's Historical Position. - Until the middle of thepresent century Austria stood at the front of German politicalunion; not until 1866 was she deposed from leadership in Germany and set apart to attempt alone the difficult task of amalgamating the polyglot dual monarchy of Austria- Hungary (sec. 492) .731. Acquisition of Hungary and Bohemia. It was unquestionably Austria's headship in the Empire which enabled theHabsburg princes at once to broaden and to consolidate theirdomain in the southeastern border- land between Slav and Teuton.Their power and influence within the Empire gave them their-333334 THE DUAL MONARCHIES.opportunity to control the destiny of border states like Bohemiaand Hungary, lying at Austria's doors. Both Hungary andBohemia fell to Habsburg in the same year, the year 1526, whenFerdinand I. mounted their throne.732. Bohemia. - - Bohemia was a Slavonic wedge thrust intothe side of Germany. Compassed about by hostile powers, itwas a prize to be fought for. Alternately conquered by severalneighboring kingdoms, it finally fell into German hands andbecame an apanage of the Empire. It was as such that the Habsburgers seized it when its throne became vacant in consequenceof the extinction of a Luxemburg line of princes . In 1526 theirhold upon it became complete, and they were thenceforth able tokeep it secure as an hereditary possession within their family.733. Moravia. Moravia also was and is Slavonic. Slavs early droveout its Teutonic possessors, and were prevented from joining the Slavsof the southeast in the formation of a vast Slavonic kingdom only by theintervention of the Magyars, the conquerors of Hungary. This dominant race in the tenth century thrust themselves in between the Slavs of thenorthwest and those of the southeast, and, driving back the Slavs ofMoravia, reduced the once ' Great Moravia ' to the dimensions of thepresent province. Striven for by Hungary, by Poland, and by Bohemia,Moravia finally met her natural fate in incorporation with Slavonic Bohemia ( 1029) , and passed , along with that kingdom, into Austrian hands,in 1526.734. Hungary. - Hungary is the land of the Magyars, a Turanian race which retains even to the present day its distinctiveOriental features, habits, and bearing among the native Europeanraces about it . After having suffered the common fortune ofbeing overrun by numerous barbaric hordes at the breaking up ofthe Roman Empire, the territory of Hungary became, in 889, therealm of the Magyar duke Árpád, the Conqueror. In the year1000 the duke Vaik, who had succeeded to the duchy in 997, received at the hands of Pope Sylvester II. the title of ' apostolicking ' of Hungary, and, under the name of Stephen, became thefirst of a line of native monarchs which kept the throne until1301. From 1301 till 1526 kings of various families and origins.won places upon the throne. During this period, too, Hungaryfelt the full power of the Turk, since 1453 master of Constanti-THE DUAL MONARCHIES. 335nople. The battle of Mohács (29 August, 1526) brought terribleoverthrow upon the Hungarian forces at the hands of Solimanthe Magnificent, and death to Louis, the Hungarian king. Louiswas childless; his widow, Maria, was sister to Ferdinand I. ofAustria; and it was her influence which led the more powerfulparty of nobles within the kingdom to elect the Habsburger tothe throne and so put Austria permanently in the Hungariansaddle . Not, however, until 1665-1671, a period of insurrectionin Hungary, did the Habsburgers convert their elective into anhereditary right to the throne.735. Transylvania, Slavonia, Croatia. Transylvania, Slavonia,and Croatia, annexed at various times to Hungary, passed with Hungaryto the house of Habsburg. Except during the period 1848 to 1867, theperiod during which Hungary was being disciplined for her revolt of1848–1849, these provinces have remained apanages of Hungary, thoughCroatia occupies a somewhat distinctive position , and is always accordeda representative of her own in the Hungarian ministry. From 1848 to1867 Transylvania, Slavonia, and Croatia were treated as Austrian crownlands.736. Galicia, Dalmatia. — Galicia, a district much fought for andoften divided , but for some time attached to Poland, came to Austriaupon the first partition of Poland, in 1772. Dalmatia, once part ofancient Illyria, afterwards a possession of Venice, much coveted andsometimes held by Croatia and by Hungary, was acquired by Austriathrough the treaty of Campo Formio, in 1797 .737. Bosnia and Herzegovina. - The Congress of Berlin, 1878,which met to fix upon a basis for the new settlements resulting from thevictories of Russia over Turkey, added to Austria's multifarious duties asruler of many races the protectorate of Bosnia and Herzegovina, districtsinhabited by a Servian race and long subject to Turkish dominion.738. Austria-Hungary: Nature of the Union. — The presentconstitution of the Austro- Hungarian monarchy practically recognizes but two parties to the union , Austria and Hungary. Bohemia, for all she has so much individuality and boasts so fine ahistory of independence, is swallowed up in Austria: only theMagyars of Hungary, among all the races of the heterogeneousrealm of the Habsburgers, have obtained for the kingdom of theirmaking a standing of equality alongside of dominant Austria.-739. Variety of Race. The commanding difficulty of government throughout the whole course of Austro- Hungarian politics336 THE DUAL MONARCHIES.has been the variety of races embraced within the domain of themonarchy. First and most prominent is the three- sided contrastbetween German, Slav, and Magyar. Within this general classification, again, Slav differs from Slav by reason of many sharpdivergencies of history, of speech, and of religion; and outsidethis classification, there is added a miscellany of Italians, Croats,Serbs, Roumanians, Jews, men of almost every race and peopleof eastern Europe. This variety is emphasized by the fact thatonly the Czechs (Bohemians), among all these peoples, have aseparate home land in which they are in the majority. In Bohemia and Moravia the Czechs constitute considerably more thanhalf the population; whilst in Hungary the Magyars, thoughgreatly outnumbering any other one element of the population,are less than half the whole number of inhabitants; and in Austria, though men of German blood are very greatly in the majorityin the central provinces which may be called Austria proper, theyconstitute in Austria taken as a whole very little more than onethird of the population.740. Home Rule: Bohemia, Hungary. At least two amongthese many races, moreover, are strenuously, restlessly, persistently devoted to independence. No lapse of time, no defeat ofhopes, seems sufficient to reconcile the Czechs of Bohemia to incorporation with Austria. Pride of race and the memories of anotable and distinguished history keep them always at odds withthe Germans within their gates and with the government set overtheir heads. They desire at least the same degree of autonomythat has been granted to Hungary.741. Not ' granted ' either. No doubt it would be more correctto say the degree of autonomy won by Hungary. Dominant ina larger country than Bohemia, perhaps politically more capablethan any Slavonic people, and certainly more enduring and definite in their purposes, the Magyars, though crushed by superiorforce in the field of battle, have been able to win a specially recognized and highly favored place in the dual monarchy. Althoughfor a long time a land in which the noble was the only citizen,Hungary has been a land of political liberties almost as longas England herself has been. The nobles of Hungary won fromtheir king, Andreas II. , in 1222, a " Golden Bull " which was aTHE DUAL MONARCHIES. 337veritable Magna Charta. It limited military service in theking's army, it regulated taxation, it secured for every nobletrial by his peers, it gave order and propriety to judicial administration, it even enacted the right of armed resistance to tyranny.The nobles, too, established their right to be personally summonedto the national Reichstag. Standing upon these privileges, theywere long able to defeat even the absolutism of the Austrian monarchs. Ferdinand I. acquired the throne of Hungary only afterrecognizing her constitution; not for more than a hundred yearsdid the crown become hereditary in the Austrian house; and nottill 1687 did the ancient right of armed resistance lose its legalsupport.742. The period of reaction which followed the Napoleonicwars and the Congress of Vienna found kings every where tightening where they could the bonds of absolutism: and nowhere werethose bonds more successfully strengthened than in AustriaHungary under the reigning influence of the sinister Metternich .1848, however, saw the flames of insurrection break forthmore fiercely in Hungary than anywhere else in terror- strickenEurope: only by the aid of Russia was Austria able once moreto get control of her great dependency. So completely was Hungary prostrated after this her supreme effort that she had for alittle no choice but to suffer herself to be degraded into a mereprovince of Austria .743. The Constitution of 1867. Wars and disasters presentlyburst upon the absolutist Austria, however, in an overwhelmingstorm. Thrust out from Germany (sec. 492) , she was made atlength to feel the necessity, if she would give her realm strength,to give her subjects liberty. Her eyes were at last fully openedto the supreme folly of keeping the peoples under her rule.weak and spiritless, poor and motionless, in order that her monarchs might not suffer contradiction . She assented, accordingly,18 February, 1867, to a constitutional arrangement which recognized the kingdom, not as Austria's, but as the joint kingdom ofAustria- Hungary, and which gave to the Empire its present relatively liberal political organization.744. Dual Character of the Monarchy. The Austro- Hungarian monarchy, although compacted by the persistent forces of338 THE DUAL MONARCHIES.a long historical development, is not a unitary state, a territorialand legal unit, but simply a " real union of two constitutionallyand administratively independent states. " This union is, indeed,more substantial than that between Sweden and Norway: thelatter has existed less than seventy- five years, and is, as we shallsee (secs. 769, 803) , only an arrangement by which two kingdoms.may subsist under a single king, as partners in internationalundertakings but as something less than partners in affairs ofnearer interest; while Austria- Hungary, on the contrary, held asa dual possession by a single royal house for more than threehundred and fifty years, subjected by that house to the same military and financial services, and left the while in possession ofonly such liberties as could be retained by dint of turbulent insistence, consists of two countries at many points interlaced andamalgamated in history and in institutional life .745. The Fundamental Laws. — The present constitutional lawof the dual kingdom rests upon grants of privilege from theCrown. It is divisible into three parts: the laws of the union,the laws of Austria, and the laws of Hungary. (a) The laws ofthe union embrace, beside various other rules concerning succession to the throne, the Pragmatic Sanction of 1713, which wasformally adopted by the representatives of the Hungarian groupof states; and the identical Austrian and Hungarian laws , passedin December, 1867, which fix the relations of the two kingdoms.to one another and arrange for the administration of their common affairs. (b) The fundamental law of Austria consists ofvarious royal decrees, ' diplomas, ' and patents, determining themembership, privileges, etc. , of the national Reichsrath and ofthe provincial Landtags. Of these the chief are five fundamentallaws of December, 1867, by which a general reconstruction of thegovernment was effected, in agreement with the new constitutiongiven to the union in that year. (c ) The constitutional arrangements of Hungary rest upon the Golden Bull of Andreas II . ,1222, touching the privileges of the Estates (sec. 741); upon certain laws of 1790-1791 concerning the political independence ofHungary, and her exercise of legislative and executive powers;upon laws of 1847-1848 granting ministerial responsibility, annualsessions of the Reichstag, etc.; and upon a law of 1868 (amendedTHE DUAL MONARCHIES. 339in 1873) whereby Croatia- Slavonia is given certain distinct privileges to be enjoyed independently of Hungary. These are mostof them older laws than the Austrian. Although able for longperiods together to keep Austria at their feet, the Habsburgershave never been able to keep Hungary for long in a similar attitude of submission . Her constitutional separateness and independence, though often temporarily denied in practice, havenever been destroyed . The coöperative rights of the Estates ingovernment, communal self-administration, and the privileges ofthe free cities have triumphantly persisted spite of all effortsmade to suppress them.746. The Common Government: the Emperor-King. - TheEmperor of Austria bears also the titles King of Bohemia and' Apostolic ' King of Hungary ( sec. 734) . He stands at the head,not of one of the branches of the government, but of the wholegovernment in all its branches. In theory, indeed, he alone governs: he makes, while legislatures and provincial assemblies onlyassent to, the laws. Law limits his powers: the sphere of hisauthority is fixed in each kingdom by definite constitutional provisions; but, whatever practical concessions modern movementsof thought and of revolution may have compelled, it yet remainsthe theory, and to a certain extent the fact, of constitutional development in Austria- Hungary that the monarch has himself ofhis own free will created such limitations upon his prerogativeas exist. There is, therefore, significantly enough, nothing to besaid by constitutional commentators in Austria- Hungary eitherconcerning the king's veto or concerning any special arrangements for constitutional change. It is thought to go without thesaying that the monarch's negative will absolutely kill, his ' let itbe ' abundantly vitalize, all laws, whether constitutional or other.747. Of course limitations upon the monarch's prerogative are notnecessarily any the less real because he may abrogate them if he dare, solong as the whole disposition and temper of his people and of his timesforbid his abrogating them.748. Succession, Regency, etc. ―The laws touching the successionto the Austro- Hungarian throne provide so minutely for the widest possible collateral inheritances, that provision for a vacancy is apparently notnecessary. Permanent laws vest the regency in specific representativesof the royal house. The royal age of majority is sixteen years.340 THE DUAL MONARCHIES.749. The Common Ministries. The Emperor-King is assistedin his direction of the common affairs of his two kingdoms bythree Ministries and an Imperial Court of Audit. There is (1) aMinistry ofForeign Affairs and of the Imperial Household, which,besides the international functions indicated by its name, ischarged with oversight of the foreign trade and shipping interests of the dual kingdom. (2) The Ministry of War, by whichthe common standing army of the two kingdoms is administered .The legislation upon which the maintenance of this commonstanding army is based originates with the legislatures of thetwo kingdoms acting separately. It is, that is, matter of agreement between the two countries . It covers such points as thesize of the army, liability to military service, rules and methodsof recruiting, etc. , and is embodied in identical laws adopted bythe two legislatures, each acting for itself and without constitutional compulsion.750. As commander-in-chief of the army, the Emperor- King has thefull right of discipline, full power to appoint, remove, or transfer officersof the line, and the determination of both the war and peace organizationsof the army, quite independently of any action whatever on the part ofthe minister of war. In most other concerns of the military administration, however, his acts require the countersignature of the minister.The militia, or reserve, services of the two kingdoms are separate, andseparately maintained; but in war the militia of both countries becomessupplementary to the regular army.(3) The Ministry ofFinance: acting under the Emperor, the minister of finance prepares the joint budget, apportions the costs ofthe common administration between Austria and Hungary, seesto the raising of the relative quotas, applies the common incomein accordance with the provisions of the budget, and administersthe common floating debt. The Ministry of Finance is in addition charged with the administration of Bosnia and Herzegovina.751. These two countries, although still nominally parts of the TurkishEmpire, have really, since the Treaty of Berlin ( 1878 ) , been subject in allthings to Austria (see 737) . The Austrian Ministry of Finance stands forthem in the position of all administrative departments in one.752. The chief sources of the common revenue in Austria- Hungary arecustoms duties and direct contributions from the treasuries of the twostates . Certain parts of the customs duties are assigned to the commonTHE DUAL MONARCHIES. 341treasury; and such expenses as these are not sufficient to meet are defrayed by the contributions, Austria paying sixty-eight, and Hungary thirty-two, per cent. of the sums needed.753. The Economic Relations of Austria and Hungary are regulated in the important matters of commerce, the money system, the management of those railroads and telegraph lines whose operation affects theinterests of both kingdoms, the customs system, and the indirect taxationof industries by formal agreements of a semi-international character entered into every ten years, and brought into force by separate but of courseidentical laws passed in the national legislatures of both countries. Each state controls for itself the collection of customs duties within its ownterritory; but Austria- Hungary is regarded as forming only a single customs and trade territory, and the laws touching administration in these fields must be identical in the two countries.There is a joint stock Austro- Hungarian bank at Vienna; the twokingdoms have by treaty the same system of weights and measures; andthere is separate coining but the same coinage.754. Patents , Posts, and Telegraphs. —A common system of patentsand copyrights is maintained; and both countries have the same postaland telegraph service.755. The Delegations. The most singular, interesting, andcharacteristic feature of the common government of Austria- Hungary is the Delegations, which constitute, in germ at least, acommon Legislature . There are two Delegations, an Austrianand a Hungarian. They are respectively committees of the Austrian and Hungarian legislatures. Each Delegation consists ofsixty members, twenty of whom are chosen by the upper, fortyby the lower chamber of the legislature which they represent.But, although thus in form a committee of the legislature whichsends it forth, each Delegation may be said to represent thekingdom from which it comes rather than the legislature of thatkingdom. It is not subject to be instructed, but acts upon itsown judgment as an independent body. The two Delegations sitand act separately, though they exercise identical functions.Each passes judgment upon the budget of the common administration, each is at liberty to take action upon the management ofthe common debt, each superintends the common administration,and can freely question and ' interpellate ' (sec. 428) the ministers, from whom each hears periodical reports; and each has theprivilege of initiative as regards all measures coming within.342 THE DUAL MONARCHIES.their competence. These functions are concurrent, not joint.They are, nevertheless, obviously functions which must undersuch a system be exercised in full agreement: the common administration cannot serve two masters. If, therefore, after atriple exchange of resolutions no agreement has been reachedbetween the two bodies, a joint session is held, in which, without debate, and by a mere absolute majority vote, the question atissue is decided.756. As a matter of fact the legislative powers of the Delegations are verynarrow indeed. Their independent action is confined for the most part tothe granting of supplies and the superintendence of the administrativeaction of the three common ministries. The very supplies they grant comeout of taxes voted separately by the parliaments of the two kingdoms;and almost every agency they use rests upon treaties and identical lawsindependently passed.757. The term for which the Delegations are elected is one year. Theyare called together by the monarch annually, one year at Vienna, the nextat Buda-Pest.758. In the selection of members of the Delegations the Austrian crownlands (the provinces once separate or independent) are entitled to representation, as is also favored Croatia-Slavonia on the Hungarian side.759. When the two Delegations meet in joint session, the number ofmembers present from each must be equal to the number of those presentfrom the other, any numerical inequality being corrected by lot.760. Citizenship. -There is no common citizenship for thetwo kingdoms; but in all business relationships the citizens ofeach state are regarded as citizens of the other.ThegovThe Emperors761. The Government of Austria: the Executive.erning power rests in Austria with the Emperor.of the present day may by no means venture upon the centralization of authority attempted and in part effected by Maria Theresaand Joseph II.; but Austrian constitutional law does not assignduties to the head of the state: it assigns functions to the ministers and grants privileges to the representative bodies. Allpowers not explicitly so conferred remain with the Emperor.He directs all the administrative activities of the state; he appoints the life members of the upper house of the Reichsrath; and,through his ministers, he in large measure controls legislation.But he must act in administration through the ministers and inTHE DUAL MONARCHIES. 343legislation through the parliament. The countersignatures ofthe ministers have been, by statute, made necessary for thevalidity of his decrees; and the consent of the Reichsrath is indispensable to the determination of the policy and content of alllegislation. The only judicial prerogative that remains withhim is the power of pardon. On all sides his power is circ*mscribed by the legally necessary coöperation of other regularly con-⚫stituted authorities.762. The Ministry, which consists of a Minister- President andseven heads of departments, acts as the Emperor's council, butit does not constitute a board whose majority vote decides administrative questions. Action is taken, rather, in each departmentupon the individual responsibility of the minister at its head.The ministers have a threefold office: they are the Emperor'scouncillors, they execute his commands, and they are the responsible administrators of special branches of the public service.They act for the Emperor also in introducing measures in theReichsrath. They must attend both Houses to defend the policyof the executive and to answer ' interpellations . '763. There are eight executive departments: Interior, National Defence,Religion and Education, Trade, Agriculture, Finance, Justice, and Railways. The Minister- President often holds no portfolio, and constitutesa ninth minister.-- 764. Legislation: the National and Provincial Legislatures.In all legislation of whatever kind the coöperation of the representatives of the people is necessary; but not all of this coöperative privilege belongs to the Reichsrath, the national legislativebody. Coöperation in the greater matters of legislation is expressly given by law to the Reichsrath, but all legislative powersnot expressly granted to it belong to the sphere of the Landtagsof the seventeen provinces (kingdoms, grand- duchies, archduchies, duchies, and counties) , of which the conglomerate realmis made up.765. The Reichsrath — . The Reichsrath consists of a House ofLords (Herrenhaus) and a House of Representatives ( Abgeordnetenhaus) . To the House of Lords come princes of the bloodroyal who have reached their majority, the archbishops and cer-344 THE DUAL MONARCHIES.tain bishops, nobles of high rank who have acquired hereditaryseats in the chamber, and such life members as the Emperorchooses to appoint in recognition of special services to the state,to the church, to science, or to art. To the other House comerepresentatives chosen by five classes of voters: the great landowners, the cities and marts, chambers of trade and commerce,the rural communes, and a fifth general class which “ includessubstantially all men not in domestic service . " The term ofthe lower house is six years.766. The present number of members in the House of Representativesis four hundred and twenty-five. Representation is apportioned amongthe several lands which form the Austrian domain; and in Dalmatia thegreater taxpayers, instead of the greater landowners, are represented . Inthe class of landowners women and corporations may vote. The franchise-which is partly direct, partly indirect is made to rest throughout allthe classes of voters, except the fifth , in one way or another either uponproperty or taxation.767. The assent of the chambers is required not only in legislation but also for the validity of treaties which affect the tradeof the country, which lay economic burdens upon the state, whichaffect its legal constitution , or which concern an alienation orextension of territory. The powers of the two Houses are thesame, except that financial measures and bills which affect recruitment for the army must originate in the House of Representatives.768. It is the general rule that the assent of both Houses is necessaryto every resolution or action of the Reichsrath; but an interesting exception is to be noted. If a disagreement arise between the chambers upon aquestion of finance or of military recruitment, the lowest figures or numbers are to be considered adopted.769. The Emperor names not only the life members but alsothe president and vice- president of the House of Lords. Hecalls and opens the sessions of the Reichsrath, and may close,adjourn, or dissolve it.770. It is within the prerogative of the Emperor, acting with the adviceof his ministers, to enact any laws which may seem to be immediatelynecessary during a recess of the Reichsrath, provided they be not financial1 Lowell, Governments and Parties in Continental Europe, II. , 88.THE DUAL MONARCHIES. 345!laws, or laws which in any way permanently encumber the state. Butsuch laws must be submitted to the Reichsrath within four weeks afterits next assembling ( going first to the House of Representatives) , andaltogether lapse unless submitted to the Reichsrath within that time, andsanctioned by it. (Compare secs. 796-798. )-771. Ministerial Responsibility. In theory, the ministers are responsible to the Houses, and must resign if defeated; but the theory findsno realization in practice. Race lines determine party lines in the Houses,and even members of the same race do not keep steadily together inpurpose or policy; so that there are no governing parties, and no majorities that can be reckoned beforehand. The Emperor may placate nowthis group, and again the other, and so keeps his own ministers andpursues his own policy as he can.772. The Landtags. — The greater political divisions of Austria retaintheir own Landtags, or local legislatures, and to these belong considerablelegislative powers. The Emperor names the chairmen of the Landtagsand their substitutes; he calls, opens, and may close, adjourn, or dissolvethe Landtags; and his assent is necessary to all their acts. But theirconsent is necessary to almost all laws which affect the provinces whichthey represent, and their privileges constitute an important part of thetotal of legislative power which rests with the representatives of the people.The provinces have also extensive rights of self- administration.A773. Local Government. The Landtags are of course the mostconspicuous organs of self-government. Each Landtag consistsof a single chamber and represents the same classes of votersthat send members to the national Reichsrath (sec. 765) , — withthe addition of another, an official class. The administrativeorgan of the province is a provincial committee, as in France(sec. 453) . The central government is represented in the exercise of its many local powers by a Statthalter or Landes präsident,whose powers are very extensive. Within the province thereare, in some parts of the country, districts or circles, which areareas of financial administration; and throughout the countrythe smallest areas of local government are the Communes, localbodies which, acting within the commission of general statutes,exercise considerable powers of self-direction through a communalcommittee and a communal president chosen, together with acertain number of assistants, by the committee.774. The Cominunes are organs of the provinces, and their presidentsto a certain extent serve the general state administration.346 THE DUAL MONARCHIES.-- 775. The Government of Hungary: the Executive. The kingbears substantially the same relations to the other powers of thestate in Hungary that he bears in Austria. The directing headof the state, he yet must act in all administrative matters throughthe ministers, and in all legislative matters through the nationalchamber. Even his treaty- making power is limited as regardsHungary in the same way that it is limited as regards Austria(sec. 767) .776. The Hungarian Ministry consists of a Minister-President and, ifhe hold no portfolio, of nine other ministers: a minister attendant uponthe king, a minister of the Interior, a minister of Finance, a minister ofIndustry and Commerce, a minister of Agriculture, a minister of Justice,a minister of Religion and Education, a minister of National Defence, anda special minister for Croatia- Slavonia.777. The ministers attend the sittings of the chambers andplay there the same part that the Austrian ministers play in theReichsrath (sec. 762) . The Hungarian ministers are, however,subject to a real responsibility to the parliament of the kingdom.The Magyars maintain a veritable majority in the HungarianHouses, and they know their own minds and the right methodsof party discipline, besides. They have been statesmen andrulers time out of mind, and the king's ministers in Hungaryobey and represent the majority in parliament, resigning as ofcourse when defeated.- 778. The Diet. The Diet (Országgyülés), the national representative body, consists of a Table of Magnates and a Table ofRepresentatives. To the former go all hereditary peers who payan annual land tax of three thousand florins, the highest officialsof the Roman Catholic and Greek churches, certain ecclesiasticaland lay representatives of the Protestant churches, eighty-fourlife peers appointed by the king, certain members ex officio, threedelegates from Croatia- Slavonia, and those royal archdukes whohave reached their majority and who own landed estates in Hungary. The Table of Representatives consists of four hundredand fifty-three members elected by direct vote for a term of fiveyears. The membership of the House for ordinary business,however, is only four hundred and thirteen. The forty additional members represent Croatia- Slavonia; and, inasmuch asTHE DUAL MONARCHIES. 347that great province has an almost independent legislature of itsown, its members in the national House vote only upon questionsof national action which affect their own province. These subjects are understood to be, the army, trade, and finance. Asmust always happen where there is real ministerial responsibility, the lower House is the governing House. The Magnatesyield, in the long run, every point upon which the purpose ofthe Representatives is definitely fixed.779. The franchise rests upon the payment of a small amount of taxeson land or on income. Members of certain learned and professionalclasses, however, possess the franchise without any property qualification .780. The president and vice-president of the upper House are nominatedby the king.781. As in the case of the Austrian representative bodies, so also in thecase of the Hungarian, the king convenes and opens, and may close ,adjourn, or dissolve them.782. Local Government.munes.-For purposes of local governmentHungary is divided into shires, self- administered cities, and ComThe organization is throughout substantially the same.In each area, the Commune excepted, there is a presidentwho represents the central government; in each, without exception, there is an administrative committee which is the executiverepresentative of the local body and an assembly, in part representative and in part primary ( inasmuch as those who are mosthighly taxed are entitled to be present) , with which rests thegeneral direction of affairs .-783. Croatia-Slavonia. There is not in Hungary the provincialorganization which we have seen to exist in Austria (secs. 772, 773) .Croatia- Slavonia is the only constituent part of the Hungarian landswhich has its own separate Landtag. The organization of this territoryis in all respects exceptional. It has been given legal rights which cannotbe taken away from it without its own consent; and it has a distinctadministration responsible to the king and to its own Landtag. It isnevertheless, an integral part of the Hungarian monarchy.784. The Danes. -SWEDEN-NORWAY.- The territory of the three northern kingdoms of Denmark, Sweden, and Norway very early became a348 THE DUAL MONARCHIES.home of the Teutonic peoples, a nursery of Teutonic strength, apeculiar possession of Teutonic institutions. It was from thisnorthern land that the fierce ' Northmen ' issued forth to windominions in France, in Russia, and in Sicily; from it, too, camethe Dane to lay his strong hand upon England. Its roving giantskept the world in terror of piracy and invasion for centuriestogether.-- 785. Early Institutions of Sweden and Norway. —The institutions of these strenuous northern folk were of the usual Germanicsort. Sweden and Norway were at first, like all the Germancountries, divided into a few score loosely confederated partsheld together by no complete national organization or commonauthority. By degrees, however, the usual slow and changefulmethods of consolidation wrought out of the general mass ofpetty political particles the two kingdoms of Sweden and Norway. In each a dominant family had worked its way to recognized supremacy and a throne. As in other Germanic countriesof the early time, so in these, the throne was elective; but, aselsewhere, so also here, the choice always fell upon a member ofthe dominant family, and the kingly house managed most of thetime to keep together a tolerably compacted power.786. Union of Denmark, Sweden, and Norway. — Once andagain intermarriage or intrigue united Sweden and Norway underthe same monarch; once and again, too, Danish power was feltin the Scandinavian peninsula, and the house of Denmark obtained a share in the distribution of authority. Finally, in 1397,a joint council of deputies from the three kingdoms met at Kalmar, in Sweden, and effected the Kalmarian Union. This unionresulted directly from the marriage of Hakon VI. , joint kingof Sweden and Norway, with Margaret, daughter of Valdemar ofDenmark; the Council of Kalmar only put it upon a basis ofclear understanding. It was agreed that the three kingdomsshould acknowledge a common monarch; that, in default of heirsof the house then on the throne, the three kingdoms should electtheir common monarch, by such methods of agreement as theymight be able to devise; but that, whether under elected or underhereditary monarch, each kingdom should retain its own laws andinstitutions.THE DUAL MONARCHIES. 349-787. The Independence of Sweden. For Norway this union.with Denmark proved of long standing. Not until 1814 was itfinally severed. Upon Sweden, however, Denmark maintaineda very precarious and uncertain hold, now ruling her, againthrust out, favored the while only by her own power and by thesleepless mutual jealousies of the patriotic but selfish and suspicious Swedish nobles. At length, in 1523, Sweden was able tobreak finally away from the union. Her deliverer was GustafEriksson, better known as Gustavus Vasa, who by force of a singular genius for leadership and war first drove the Dane out andthen established the royal line which was to give to Europe thegreat Gustaf Adolf, the heroic figure of the Thirty Years' War.Gustaf Eriksson reigned for thirty- seven years (1523-1560) , andwith him the true national history of Sweden may be said to havebegun. The house which he founded remained upon the throneof Sweden until 1818, and under the long line of sovereignswhich he inaugurated the Swedish constitution was worked outthrough a most remarkable series of swings back and forth between the supremacy of the monarch and the supremacy of theroyal council. According as the personal weight of the kingwas great or small did the royal power wax or wane.788. Oscillating Development of the Swedish Constitution. -The old constitution of Sweden associated with the king a powerful council of nobles and an assembly of Estates. In the latter,the Riksdag, four orders had acquired representation, the nobles,the clergy, the burghers, and the peasants. For two hundredyears the constitutional history of Sweden is little more than achangeful and perplexing picture of the ascendency now of theking, now of the Council or of the Riksdag, and again of theking, or of the Council and Riksdag combined. With GustafAdolf (1611-1632) originated the clumsy plan, retained until thepresent century, according to which each of the orders represented in the Riksdag acted separately in the consideration ofnational affairs, to the fostering of dissension among them. Bydint of the masterful policy of Karl XI. ( 1672-1697) , the powerof the Crown was made absolute, the Council eclipsed. Karl XII. ,a great soldier, wasted the resources of the country and therebyprepared the way for a decline of the royal power. 1720 saw a350 THE DUAL MONARCHIES.new constitution adopted which gave almost entire control ofaffairs to the Council and to a committee of one hundred drawnfrom the three first Estates of the Riksdag; and 1734 broughtforth a new code of laws. Gustaf III. , however (1771-1792) ,again reduced the Council from its high estate, and left to theRiksdag nothing but a right to vote against an offensive war.And so the constitution swung backward and forward until thepresent century.-789. Bernadotte and the Accession of Norway. The greatchange which ushered in the present régime in Sweden came in1814, when by the Convention of Moss (August 14) and the actionof the Congress of Vienna, Norway was separated from Denmarkand joined, by a throne, to Sweden. Norway had adopted a newand liberal constitution at Eidsvold on May 17, 1814 ( in whichit was provided, amongst other things, that all Acts should besigned by the ministers, by authority, ' instead of by the kingsimply, as hitherto) , and had chosen Kristian king. Upon thesigning of the Convention of Moss, however, Kristian was obligedto resign; and until the formal ratification of the convention, onNovember 4, 1814, Norway was practically a republic. Actingwithout a king, she accepted Karl XIII. of Sweden as her sovereign, and obtained from him an acknowledgment of the constitution of Eidsvold . Karl ( 1809-1818) was childless; and in1810 the Swedes, willing to please Napoleon, the master of Europe, chose as prince and successor to the throne Bernadotte, aman who had risen from the ranks to be one of the many distinguished generals bred in the service of Napoleon.790. Bernadotte ascended the Swedish throne, with the title of KarlXIV. , in 1818, but he had really come into the possession of full royalpower in 1811 , on account of the failing health of Karl XIII.791. It turned out, however, that Bernadotte was more readyto oppose Napoleon than any longer to serve him. He threw theweight of Sweden on the side of the Allies, against the designs ofFrance; and Norway's union with Sweden was confirmed whenthe Allies made their deal at Vienna.792. Norway's Fight for Independence and her New Constitution. Norway, though willing enough to escape the dominionTHE DUAL MONARCHIES. 351of Denmark, had not chosen without compulsion to exchange forit an equal bondage to Sweden. She at first refused to accept thesettlement of 1814, rose in rebellion against all outside control,framed for herself a liberal constitution, and for a few months.essayed once more the rôle of an independent kingdom. Her newconstitution she managed to keep. With England's assistance,Bernadotte compelled her acquiescence in the union with Sweden,but he did not force upon her a surrender of the institutions whichshe had chosen to adopt.793. The union between Norway and Denmark accomplishedat Kalmar had resulted in the absolute power within his Norwegian domain of the common king . Allying himself with thecitizen class in the national assembly, the king had been able tocrush the nobles, and eventually to destroy all constitutional liberties. This he was the more readily enabled to do because thethrone of Norway had early become hereditary and the Norwegiannobles had thus been robbed of that sovereign influence which,under the elective system of Denmark and Sweden, they had longcontrived to retain. The new constitution adopted by the Norwegians at Eidsvold in 1814 naturally spoke a strong reassertionof national privileges and institutions. It was not only decidedlydemocratic, it was also not a little doctrinaire and visionary.Its framers, having too few Norwegian liberties to build upon,had recourse to the always futile resource of borrowing foreignexperience. They embodied in the new fundamental law constitutional arrangements which they had taken from England andthe United States and which found no suitable soil of Norwegianhabit in which to grow. Still, her new constitution gave Norwaya valuable impulse towards regulated political liberty; and, if notcarried out at all points, was at least a promise of things hopedfor and afterwards to be in great measure attained.794. Constitutional Contrast between Sweden and Norway. -In Sweden there had been no such democratic revolution; and inpoint of institutions the two kingdoms were in 1814 very unequalyoke-fellows. Until 1866 Sweden retained her clumsy machineryof a Riksdag of four Estates , as well as many other constitutionalarrangements which made the royal power predominant. Doubtless the standing example of Norway's more simple and liberal352 THE DUAL MONARCHIES.constitution had much to do with the revision of the Riksdagundertaken 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 principally by the movement of Sweden,the two countries have drawn towards each other in institutionaldevelopment.795. The Fundamental Laws. - The present fundamental lawof Sweden- Norway consists of three parts: (a) the separate constitutional laws of Sweden, (b) the separate constitutional lawsof Norway, and (c) the Imperial Riks- Akten of August, 1815,which binds the two countries together under a common sovereign. This last is, as 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 law, havingbeen formally adopted as such by the Storthing. (a) The separate fundamental laws of Sweden have never been embodied inany single written constitution, but consist of various laws regulative of the succession to the throne, passed in the period ofdynastic change ( 1809-1810); of certain portions of the greatenactments of February, 1810, which gave to the Riksdag anorderly arrangement of its four Estates and regulated the orderof legislative business; of the enactments of June, 1866, which,abolishing the fourfold constitution of the Riksdag, substitutedtwo popular houses; and of the laws guaranteeing freedom of thepress, passed in May, 1810, and July, 1812. Taken together,these laws constitute a body of fundamental provisions slowlybuilt up by Swedish statesmen upon the somewhat inconstantbases of Swedish constitutional precedent. Perhaps its most significant feature appears in the detail with which the enactmentsof 1810 enter into the regulation of the order and methods ofbusiness in the Riksdag. Under the former complicated divisionof that body into four separate houses minute regulative detailwas of course unnecessary, and, as seen in the laws of 1810, thisdetail is illustrative of one of the chief and most interesting difficulties of constitutional development in Sweden. ( b) The constitutional laws of Norway, on the other hand, are, equally fromthe nature of the case, very much more simple. They consist ofTHE DUAL MONARCHIES. 353the Convention of Moss, drawn up in August, 1814, and confirmedby Norway in November of the same year; of the constitutionframed by the Norwegians at Eidsvold in May, 1814, during thebrief struggle against all foreign control; and of the imperialRiks-Akten of August, 1815, which Sweden has continued to observe as a treaty merely, but which Norway has made a part ofher law.- 796. The Common Government: the King. The thong whichbinds Sweden and Norway together is the authority of theircommon king; but they are in effect separate kingdoms, and thisauthority has one character as respects Sweden and quite anotheras respects Norway. The fundamental laws of each kingdomconstitute it a limited monarchy, but only in Norway does itseem to be the chief object of constitutional provision to limitroyal power. Both the active and the obstructive parts of theking in legislation are much more considerable in Sweden than inNorway. In Sweden it rests exclusively with him to formulatewhat are there denominated ' economic laws ': administrativelaws, namely, regulative of trades, commerce, and manufacture,and of mines and forests . He is , moreover, the sole and sovereign author of police regulations, and of laws controllingvagrancy; he has power to make rules concerning the erection ofbuildings and to originate ordinances touching sanitary precautions and protection against fire. As regards all other laws hemust act jointly with the Riksdag; though his veto is in everycase absolute.797. The Riksdag may, of course, advise the king concerning theeconomic and administrative legislation entrusted thus exclusively tohim; but any action it may take has the force of advice merely. Theonly control it can exercise in such cases comes to it through its moneypower; it may withhold the money necessary to the carrying out of administrative or economic ordinances determined upon by the king.798. In Norway, on the other hand, the king has no independent legislative powers, except during recesses of the Storthing;and his veto is only suspensive . Certain police regulations andcertain ordinances touching particular branches of industry hemay issue while the Storthing is not in session, but these are offorce only until the Storthing comes together again. (Compare354 THE DUAL MONARCHIES.sec. 770. His veto of bills passed by the Storthing may be overridden by the passage of the same bill ( it must continue literallythe same) by three successive Storthings.799. This naturally renders the passage of bills over his negative anextremely tedious and difficult undertaking, and usually, in case of a veryurgent disposition on the part of the Storthing to have its own way, acompromise measure is finally adopted, often at the express suggestion ofthe king. In two notable instances, however, the abolition in 1821 ofsuch noble titles as existed since the adoption of the democratic constitution of 1814, and the establishment of ministerial representationin the Storthing ( 1884) , —the veto was overridden, through the persistence of the Storthing, by means of the constitutional passage of themeasures proposed.800. The Throne -. The royal majority is fixed at eighteen years.Women are excluded from the succession . The king must be of theLutheran faith . He takes the throne under oath to obey the constitutionand laws of the dual kingdom, and he must temporarily lay down thegoverning power when sick or out of the country, except when absent in the field of battle.801. In case a vacancy occurs, the throne is to be filled by election ,the choice to be made by the Swedish Riksdag and the NorwegianStorthing acting separately , if they can agree; or, if they cannot agree,by a joint committee of seventy- two ( thirty- six from each body) assembledat Carlstad. This committee is to choose between the two candidates by secret ballot.802. In the event of an interregnum or of the minority of the king, theadministration of the two kingdoms is to be undertaken by a joint Council of State, consisting of the ten ordinary state councillors of Sweden andten special representatives of Norway. If the interregnum or minoritycontinue more than a year, however, the national representatives must becalled together and given an opportunity to make other arrangements. Ifthe king be sick or absent, his heir, if of age, governs in his stead.803. Foreign and Common Affairs . - Almost the only commonaffairs of the two kingdoms which are matters, not of agreementbetween them, but of sovereign action on the part of the kingacting for both, are those affairs which affect the relations of Norway and Sweden with foreign countries. In this field of foreignaffairs the king has power to declare war and conclude peace, toform or dissolve alliances, to use ships of war or troops, to sendor recall ambassadors, has, in brief, all the prerogatives ofsovereignty. His power to act thus for both kingdoms does not,THE DUAL MONARCHIES. 355however, merge Sweden and Norway as regards international relations: they retain their separateness and individuality in thefamily of nations; and the king may, and often does, concludetreaties affecting one of his kingdoms only. Peace and war areinevitably, however, common to both kingdoms.804. The king is assisted in these functions by no common minister offoreign affairs: he acts through the Swedish minister, Norway having no minister of foreign affairs at all. Certain other ministers of state must bepresent, however, when the Swedish foreign minister lays diplomatic affairsbefore the king; and when such matters directly affect Norway a Norwegian minister of state must be present. Norwegians find ground forserious objection to the present constitutional arrangements existing between the two countries in their own too slight hold upon the conduct offoreign affairs.805. War. If, in the exercise of his great international functions, the question of war arise, the king must take the opinionof a joint Council of the two kingdoms (sec. 809) , but he is notlegally bound by its opinions. He must himself assume the fullresponsibility of deciding the question.806. A certain limitation rests upon the royal power as regards the useof the Norwegian forces. He may freely call out the whole military force ofSweden, both land and naval, but he may not use the Norwegian troopsof the line without the express consent of the Storthing. The Norwegianmilitia, moreover, cannot under any circ*mstances be employed outside ofNorway, and it is within the competence of the Storthing at any time toincrease the militia at the expense of the regular line. It has indeed actually done this.807. Legislative Control of Foreign Relations. — Of course, too, theking must in every exercise of his royal powers act within the limits ofthe fundamental law. He cannot enter into any agreement with a foreigncountry which is not consistent with the constitutions of his kingdoms;he may not conclusively pledge the legislatures of his kingdoms to anyaction or to any expenditure of money; and he is in a large measuredependent upon their coöperation for the execution of treaties. Butthese are the familiar limitations of modern representative government.808. Concurrent Legislation. ― - Matters which are of commoninterest to the two countries, but which lie outside of the prerogatives of the common king, are regulated by concurrent identicalresolutions or laws passed by the Riksdag and the Storthing sev-356 THE DUAL MONARCHIES.erally. Important examples of such concurrent laws are thosewhich affect the money systems of the two countries, and thosewhich concern the Lapps. The money systems of the twocountries are not the same; but there is a regulated systemof exchange.809. The Joint Councils. The place of a common ministry toadvise the king touching questions which affect the interests ofboth kingdoms is taken in Sweden-Norway by a complicated system of Joint Councils of State. Whenever any matters are considered in the Swedish Council of State at Stockholm whichconcern Norway also, the Norwegian minister resident and thetwo Norwegian councillors who regularly attend the king mustbe called in (sec. 823); and whenever practicable the opinion of thewhole Norwegian Administration must be sought and obtained.Whenever, on the other hand, matters which directly affect Swedenare under debate in the Norwegian Council of State at Christiania,that Council must likewise be reinforced by the presence of threeSwedish ministers. There is thus upon occasion both a SwedishNorwegian and a Norwegian- Swedish Joint Council of State; andnot a little doubt exists among publicists in the two kingdoms asto what particular matters are proper to the consideration of oneand what to the consideration of the other of these anomalousbodies. The whereabouts of the king, however, serves as a roughcriterion as to the predominance of Sweden or of Norway in theseCouncils.810. The sphere of these Councils is quite extended. It includes theconsideration of questions of war and peace, the oversight and the costsof the diplomatic service, inter-territorial relations, the balance of financial accounts between the two countries, and all reciprocal affairs in whichthe intimate coöperation of the two kingdoms is necessary.811. Citizenship . There is no common citizenship for thetwo kingdoms, although Swedes are allowed by Norwegian lawto acquire citizenship in Norway by mere residence. Certainreciprocal advantages are, however, accorded: citizens of eithercountry may, for instance, own land in the other; interstatetrade is encouraged, and a joint-ownership of vessels is facilitated. Legal banishment from one kingdom, moreover, is banishment from the other,THE DUAL MONARCHIES. 357812. The Government of Sweden. In all matters of internallegislation and administration the two kingdoms are as distinctas if no legal relations existed between them. Each has its ownseparate treasury, its own bank, its own money system, its ownarmy and navy; and each has its own complete administrativeand legislative organization.--- 813. The Swedish Executive: the King and Council. — Sweden'stheoretical development in the field of constitutional law has beenless complete than her practical development. Her fundamentallaw recognizes only a twofold division of governmental powers,into Executive and Legislative. Judicial power is supposed toreside in the king, and is in theory indistinguishable from theExecutive power. As a matter of practice, however, though theking nominates the judges, they are quite as independent of him asthey would be were Swedish theory upon this head more advanced.814. The position and character of the Swedish Executive arein some respects peculiar. The king is charged to a quite extraordinary extent not only with the general oversight but also withthe detail of administration . The ministers are not so muchdirecting heads of departments as councillors of state assigned theduty of advising the monarch. They have seats in the Riksdagwith a full voice in all its debates and the right, exercised in thename of the king, to initiate legislation. This connection withthe legislature involves also, as a natural consequence, frequentresignations of the ministers in cases of unalterable disagreementbetween themselves and one or both of the chambers; but ministerial responsibility is not as yet a recognized principle of theconstitution. Not only the full equality of the two chambersstands in the way of its development, but also the authority ofthe king. The ministers serve too many masters to be altogetherresponsible to any one of them. In respect of her Executive,therefore, Sweden may be said to stand half-way between England and France, where ministers are wholly responsible to one.house of the legislature, and Germany, where the ministers areresponsible to neither, but to the sovereign alone.815. The executive departments in Sweden are the following seven:Foreign Affairs , Justice, War, Marine, Interior, Finance, Educational andEcclesiastical Affairs. At the head of the Council of State (the collective358 THE DUAL MONARCHIES.ministry) stands a prime minister who is not generally assigned any specific executive duties. The division of business among the departmentsrests entirely with the king. Although the king governs, however, so faras one man may, every decree which he issues must be countersigned bythe head of the department whose affairs it concerns.816. The Riksdag. The national Riksdag consists, as in mostother governments, of two chambers. Neither, however, is ahouse of lords; both chambers, on the contrary, are representativein their make-up. One, the upper chamber, consists of one hundred and fifty members chosen for a term of nine years by therepresentative bodies of the counties and the councils of thelarger towns: these electoral bodies being in their turn chosenupon the basis of a complicated communal franchise granted.chiefly on property or income. No one is eligible to be electeda member of this chamber who has not possessed for at leastthree years previous to the election property of the taxable valueof some twenty-two thousand dollars, or an annual income of atleast eleven hundred dollars. The lower house, numbering twohundred and thirty members, is chosen for a term of three yearsby the electors of the towns and of the rural districts, either bydirect or by indirect vote as a majority of the electors prefer.The rural districts are allowed one member for every forty thousand inhabitants, the towns one for every ten thousand inhabitants, the latter being thus given the preference in representation.For both electors and members there is a small property or income qualification.817. This does not, however, result in the return of a majority of townmembers. Only eighty members are returned by the towns, one hundredand fifty by the rural districts.818. The proportion of representation in the upper house is one member for every thirty thousand inhabitants. The rural population has bythis arrangement a larger representation in the upper than in the lowerhouse. Only the municipal councils of those towns participate in theelections to this house whose population is not represented in the countycouncils. Such towns are only five in number: Stockholm, Göteborg,Malmö, Norrköping, and Gafle.819. The members of the upper house are not elected for a joint termof nine years, but each member is chosen to serve that length of time: sothat if any member be chosen to fill a vacancy his term will, of course,overlap the terms of the members previously elected . The body is thusgiven a sort of continuous existence.THE DUAL MONARCHIES. 359820. Joint Legislation upon Financial Questions.-It is apeculiarity of Swedish constitutional arrangements that, undersome circ*mstances, the two houses are fused. Legislative business is under the general direction of a joint committee of thetwo chambers, and in case of a difference of opinion betweenthe houses upon financial matters a decision is reached in jointsession. The houses meet in joint session for no other purpose,however.821. Local Government. Local government rests in Swedenupon very ancient historical foundations. The primitive Germanic institutions of self-government have there never beenentirely overlaid or lost . In the Communes, the oldest and, so tosay, most natural areas of local administration, there is almostcomplete autonomy, the people themselves acting, where the sizeof the community does not forbid, in primary assemblies, quiteafter the immemorial fashion. The counties are more artificialconstructions of a later date and are presided over by officersappointed by the king; but in them also popular representativecouncils play an important supervisory part.822. Changes in the Constitution.-Changes in the constitution can be quite simply effected. If proposed by one Riksdagand adopted by the next (the next after an election for the lowerhouse) they become, with the royal assent, incorporated parts ofthe fundamental law.823. The Government of Norway: the Norwegian Executive. —The king stands in substantially the same relations to his Councilin Norway that he occupies towards his Council in Sweden: thesupreme deciding authority is his. Alike in Norway and inSweden he must take the opinion of his ministers upon publicquestions; and when he is in Sweden he may not take anydecision upon Norwegian affairs without hearing the advice ofthe three Norwegian councillors who attend him there (sec. 824) .On important Norwegian measures not demanding haste he musteven, when in Sweden, ask the written opinion of the whole Norwegian Council. But the decision is his in any case. His constant absence in Sweden, nevertheless, gives a weight in government to the Norwegian Council which its Swedish counterpartnever possesses. The king must leave to that Council, acting360 THE DUAL. MONARCHIES.under the presidency of a viceroy or of the prime minister, themajor part of the governing authority, including even his veto;and his power to reverse its action is strictly limited. As regardstheir relations to the national legislature the Norwegian do notdiffer greatly from the Swedish ministers. They sit, withoutvoting, in the Storthing; they have the privilege of initiative,and they are under no constitutional obligation to resign in caseof defeat (sec. 814) .824. The Norwegian Council of State consists of two parts, ( a) a minister of state and two councillors, all three of whom accompany the king,and ( b) the Government ' proper, consisting of a minister of state, asprime minister, and six or seven other ministers, according as the primeminister has or has not a portfolio . For the administrative departmentsin Norway, as in Sweden, are seven in number; namely, EcclesiasticalAffairs, Justice, Interior, Finance and Customs, War (including, since1885, the navy) , Public Works, and Audit. The division of businessamong the several departments rests with the king.825. The Storthing. The national Storthing has a characterand constitution quite peculiarly its own. It is, in fact, a singlebody, elected as a whole, but self-divided for ordinary legislativebusiness into two sections, a Lagthing and an Odelsthing. It ischosen for a term of three years and consists of one hundred andfourteen members, thirty-eight (or one-third) of whom are returnedby the towns, seventy-six (or two-thirds) by the rural districts.826. This proportion is fixed by law and can be changed only by constitutional provision. The franchise rests upon a property qualification,and the voting is indirect. In the cities the secondary electors are chosenin the proportion of one to every fifty voters; in the country districts inthe proportion of one for every one hundred voters.827. Upon the assembling a new Storthing one-fourth of itsmembers are selected, by the Storthing's own vote, to constitutethe Lagthing; the remaining three-fourths constitute the Odelsthing; and with the Odelsthing remains the right to originate allmeasures of legislation. The Lagthing is thus, as it were, merelya committee of the Storthing set apart as a revisory body, a sort ofupper chamber. It is only with regard to ordinary bills, however,that the Storthing acts in this way as two houses. Constitutionaland financial questions it considers as a single body.THE DUAL MONARCHIES. 361828. In case the Lagthing twice reject any measure sent to it by theOdelsthing, the difference is decided in joint session by a two-thirdsvote.829. Local Government. Local government in Norway does notrest upon the same undisturbed foundations of historical traditionwhich in Sweden uphold it. The laws which give to it its organization date from 1837. By these the country is divided intodistricts and communes, in the government of both of which thepeople are represented, but in both of which officials appointed bythe central Government exercise considerable powers of oversightand control.830. Changes of Constitution. Constitutional amendment iseffected in Norway substantially as in Sweden. Proposals ofamendment must be introduced at the first ordinary session of theStorthing held after an election, and must be finally acted upon,without alteration, during the first session of the next Storthing.The votes of two-thirds of the members present are required forthe passage of such amendments, and the king's veto operates asin other cases (sec. 798) .831. The Two Countries. More than eighty years of successful union ( 1814-1897) now stand behind this singular dual monarchy. The attitude of Sweden towards her partner land has beenmarked during most of this period, as the attitude of the strongertowards the weaker party should be, by not a little forbearanceand consideration . The two countries have concurred in removing also all the more serious causes of possible commercialirritation between them, though a customs tariff still burdenstrade between them. Sweden, nevertheless, has the preponderantweight and influence in all common affairs, particularly in theregulation of the foreign relations of the two kingdoms (sec.803) . Her policy, moreover, is often, when considered fromNorway's point of view, a Swedish policy merely, looking directlyor indirectly towards Swedish control. Not a few causes ofjealousy, not a few points of friction, remain in the system. Aninfluential party in Norway, therefore, desires an even largermeasure of independence and home rule than is now possible.without fundamental constitutional change, suspecting, probablynot without just cause, that it is the object of a certain party, at362 THE DUAL MONARCHIES.any rate, if not of all parties, in Sweden, to weaken the guaranteesof liberty now existing, and to draw Norway even further withinthe circle of Swedish control. The future, it would seem, mustassuredly bring forth either greater consolidation of the dualgovernment or a new and better definition and guarantee of Norway's separate rights.SOME REPRESENTATIVE AUTHORITIES.On Austria-Hungary:Arnold- Foster, F., " Francis Déak, A Memoir, " London, 1880 .Borgeaud, Charles, " The Adoption and Amendment of Constitutions inEurope and America. " Translated by C. D. Hazen and J. M. Vincent.N.Y. and London, 1895 .Demombynes, G., " Les Constitutions Européennes, " II. , pp. 167–304 .2 vols. , Paris, 1883 .Dickinson, Reginald, " Summary of the Constitution and Procedure ofForeign Parliaments. " 2d ed. , 8vo. London, 1890.Gumplowicz, " Das Oesterreichische Staatsrecht. "Leger, Louis, " A History of Austro-Hungary from the Earliest Time tothe Year 1889." Translated from the French by Mrs. BirkbeckHill. London, 1889.Lévy, D., " L'Autriche- Hongrie, ses Institutions, " etc., Paris, 1872.Lowell, A. L., “ Governments and Parties in Continental Europe, ” Vol. II.,Chaps. VIII.-X. 2 vols . Boston, 1896.Patterson, Arthur J., " The Magyars: Their Country and Its Institutions. "2 vols. , 8vo. London, 1870.Ulbrich, J., "Das Staatsrecht der oesterreichisch-ungarischen Monarchie, "in Marquardsen's " Handbuch des oeffentlichen Rechts der Gegenwart," Freiburg in B. , 1884.Vámbéry, Arminius, and Heilprin, Louis, " Hungary, " (Stories of theNations Series ) , N.Y. and London, 1886 .Whitman, C. Sidney, " The Realm of the Habsburgs, " London and N.Y.1893 .Worms, Baron H. de, "The Austro-Hungarian Empire." 8vo. London,1877. Historical and descriptive .Zuylen de Nyevelt, Baroness, " Austria: Its Society, Politics, and Religion." National Review, October, 1891.On Sweden-Norway:Aschehoug, T. H., “ Das Staatsrecht der vereinigten Königreiche SchwedenTHE DUAL MONARCHIES. 363und Norwegen, " in Marquardsen's " Handbuch des oeffentlichenRechts, " Freiburg in B., 1886.Borgeaud, Chas. , as above, pp . 94-104.Demombynes, G., " Les Constitutions Européennes, " I., pp. 93–198.Dunham, S. A., " History of Denmark, Sweden, and Norway." 3 vols. ,12mo. London, 1840. Best brief history in English.Geijger, E. J., and Carlson, F. F., “ Geschichte Swedens,” translated intoGerman by J. C. Petersen. 5 vols. , 8vo. Gotha, 1844–1875.Keary, C. F., " Norway and the Norwegians. " 8vo. London, 1892.Otté, E. C., “ Scandinavian History. " 12mo. London, 1894.Sars, J. E., " Historisk Inledning til Grundloven. "X.THE GOVERNMENT OF GREAT BRITAIN.I. CENTRAL GOVERNMENT.--832. Origin of the Constitution . The history of governmentin England, as in Germany, begins with the primitive polities ofthe Teutonic races. Those great race movements of the fifthcentury which put the Frank into the Roman's place in Gaulput the Angles and Saxons in the place of the Roman in Britain.The first Teutons who made a permanent settlement in Britain(A.D. 449) did not find the Roman there; the imperial legionshad been withdrawn from the island almost forty years before(A.D. 410) to serve the Empire in her contest with invadinghosts nearer home. But the new-comers from the lowlandsabout the Elbe and the Weser found there many splendid andimpressive monuments of the civilization which everywherekept company with Roman dominion. What effect these evidences of the displaced system of Rome may have had uponthe rough seamen who made the new conquest, or how much ofRoman influence may have remained with the people of Britainto be handed on, in faint reproduction, to future masters of theisland, it is impossible to say. Certainly, however, there wasnothing of Rome's handiwork in the forms of government whichthe Teutons established at the basis of English politics. Thoseforms were their own. They were reproductions, as nearly as theconditions of conquest would permit, of the institutions whichthe Romans had seen in use among their redoubtable foes beyondthe Rhine before ever the Empire had suffered serious inroad.833. Primitive Teutonic Institutions.-These institutions hadnone of the national character which they were in the course of364THE GOVERNMENT OF GREAT BRITAIN. 365time to acquire. They illustrated the well-known historical sequence, in which local tribal government always precedes centralnational government. Men governed themselves as families andsmall communities before they were governed as nations. Forthe Germans of that early time the village was the centre ofpolitical life; national organization they at first scarcely knewexcept for purposes of war; kinship among them was honoraryand typical rather than real. The freemen of each little community in times of peace directed their own affairs with quiteabsolute freedom in village meeting. Even in war each freemanhad 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 (secs. 287-294) . A very fiercedemocratic temper seems to have ruled in the politics of thatrough primitive time. And it is not at all likely that this temperwas a whit abated among the hardy pirates, as tempestuous asthe northern waters which they braved, who founded new tribalkingdoms in Britain in the fifth century.834. Institutional Changes effected by Conquest.- Concerted,organized movements for conquest did the same thing for theAngles and Saxons that they did for the Franks (secs. 300, 301):they made real kingship necessary as an abiding basis for nationalorganization. The military leader was of necessity constitutedpermanent king, the same cohesion being needed to follow upand enjoy conquest that had been needed to effect it. But thenew kingdoms were at first quite small, small as the islandwas, it held many such, and the internal organization of thetribes was probably not deeply affected by the fact that a thronehad been set up. The people gathered, as was their long- timewont, into more or less compact but always small communities,round about the homesteads and villages the Romans had built;enjoying their lands according to some system of ownershipwhich left the chief pastures and the principal water supplyopen to use by all and reserved only the arable land to separateuse by individuals. Justice and government still proceeded , asof old, at first hand, from the meeting of village freemen.835. The Hundred- moot and the Folk-moot. But there was,besides, a wider organization , possessing features which possibly366 THE GOVERNMENT OF GREAT BRITAIN .had not been quite so fully and symmetrically developed andintegrated in earlier Germanic practice. Communities were combined into hundreds,' and it was a combination of hundreds,'doubtless, that constituted the little kingdoms of the first periodsof Saxon dominion, some of which at any rate became the' shires ' or counties of the later times when all England wasunited under one rule. The ' hundred, ' like the smaller units ofthe system, the several villages or communities, had its moot ' ormeeting, composed of the priest, the reeve, and four men fromeach township within its limits. The principal functions of thishundred-moot were those of a court: for the hundred was distinctively a judicial rather than an administrative district. Abovethe hundred-moot, at the top of the primitive system, was thegeneral folk-moot, a general assembly of the freemen, playingthe same part as tribal or national council that Tacitus hadseen similar assemblies play in Germany in the first century.836. English Kingdom and English County. When the English kingdoms were many, each, probably, had its general council,which sat under the presidency of the king, and which advisedwith him concerning the common interests with some at least ofthe old authoritativeness which its conclusions had possessed before the new kingship had been created. When England hadbeen made a single kingdom, in the later days when the Normanconquest was drawing near, these divisions of the land, thesekingdoms which had once had independent political life, sank tothe rôle of counties, and their folk-moots, which had once beennational assemblies, became mere shire-moots, mere county courts,presided over by the sheriff as representative of the king, thebishop as representative of mother Church, and the ealdorman asrepresentative of the tribe, and composed of the landowners ofthe shire, the reeve, priest, and four men from each township,twelve representatives from each hundred, and all officials.837. The Witenagemot. National authority, meantime, hadpassed, so far as it had passed to any assembly, to an assembly ofanother kind, to a great council called the Witenagemot, or Assembly of the Wise. We have no certain knowledge of the exactcharacter of this famous national body; but we are probablywarranted in concluding that it was formed more or less closelyTHE GOVERNMENT OF GREAT BRITAIN. 367upon the model of the assemblies which it had supplanted. Thenational councils of the smaller kingdoms of the earlier time,which had now shrunk into mere shire courts, handed on theirfunctions of general counsel, and in theory also , it may be, theirorganization, to the Witenagemot. Possibly it was within theright of every freeman to attend and vote in this great meetingof the nation; but as a matter of fact, its membership was limited,apparently from the first, to the chief men of the shires and ofthe royal household. To it came the sheriffs, the ealdormen, thebishops, and the chief officers and thegns about the king's person.When the king wished a veritable national council he wouldsometimes summon the moots of all the shires to meet him ingrand Mycel-gemót at some central point in the kingdom and declare their assent to his laws. This he did to spare himself thetrouble of taking his laws to each shire moot in turn, as it hadonce been the king's custom to do.The powers of the WitenIt838. Powers of the Witenagemot.agemot were very great indeed, in theory always, perhaps atfirst in practice also. To it belonged the old popular prerogativeof electing, or upon occasion deposing, the king. It gave or withheld its consent to grants of the public land. It was the supremecourt of the kingdom, for both civil and criminal cases.shared with the king the lawmaking and appointing power, andjoined him in the imposition of taxes. As the king grew in powerand influence, the coöperation of the Witenagemot in judgmentand legislation became more and more a matter of form only;but always there were two or three yearly meetings of the body,and its action, though in most things merely formal and perfunctory, was yet a necessary and, symbolically, a valuable form,preserving, as it did, the memory, if no more, of the nation'sfreedom.839. The Norman Feudalization. With the Norman conquestcame profound changes in the government of England. The chiefofficers of the shire became royal officers merely, the ecclesiastical authority being set apart to itself, and the ealdorman beingshut out from all administrative functions. The land Williamconfiscated in vast quantities, in the ruthless thoroughness of hisconquest, because of the stubborn resistance of its English own-368 THE GOVERNMENT OF GREAT BRITAIN.ers, and granted away in new estates to Normans or to submissive 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 dependencies of vassal upon lord and of lord upon overlord, was perfected in England also. Township courts in most places gaveway to baronial courts; hundred-moots lost their one-time importance; and all judicial power that did not pass into the hands offeudal lords tended to pass to the court of the sheriff, the king'slieutenant in the shire. Still William kept the barons under; hedid not suffer their power to become threatening to his own, butkept them always dependent upon himself for the continued exercise of their privileges.840. The Great Council of the Norman Kings. - More important still, he preserved, with modifications to suit his change ofsystem, the national assembly of the Saxon polity. He claimed.to come to the throne by natural right and legal succession, notby conquest, and he sought to continue, so far as might be, theconstitution under which he claimed succession. He sought andobtained formal election to the throne, as nearly as possible inaccordance with the ancient forms; and, his throne secure, heendeavored to rule within the sanction of ancient custom. Hemaintained the Witenagemot. But its character greatly changedunder his hands. Revolt hardened his rule, to the exclusionof the old national element from the central assembly of therealm. As the new organization of the country assumed a feudal character of the Norman type, that new character becamemirrored in the composition of the royal council. The Mycelgemót merged in the Great Council (magnum or communecilium) of the king's tenants-in-chief. To it came at first, besidesthe earls, the barons, and the knights, who either in fact or infeudal theory held their lands of the king, the archbishops also,the bishops, and the abbots; subsequently, however, even theseecclesiastical members were admitted only as barons, as holdingland of the king and so members of the feudal hierarchy. Intheory, it would seem, every landowner was entitled to claim aseat in this Council; it was meant to hold the place of a nationalassembly which could speak for the governing classes; but incon-THE GOVERNMENT OF GREAT BRITAIN. 369fact only the greater barons and churchmen as a rule attended,and tenure by barony ' became at length the only valid title tomembership. The development of the Great Council of theNorman kings is the central subject of early English constitutional history; for from it may be said to have sprung the wholeeffective organization of the present government of England. Outof it, directly or indirectly, by one process or another, have beenevolved Parliament, the Cabinet, and the courts of law.841. The Feudal System in England. - England was not feudalizedby the Normans. Feudalization had grown there, as elsewhere, with thegrowth of Teutonic politics , under Saxon and Dane as under Frank andGoth. Society in England, as on the Continent, had divided into ranksof nobles, freemen, and slaves bound together by personal fealty and theprinciples of landownership. What the Norman did was to give newdirections to the indigenous growth of feudalism. The system had notgone to such lengths of disintegration in England as it afterwards went on the Continent, and William the Conqueror's first care when compacting his power in the island was to subordinate all feudal elements permanently to the Crown. He saw to it, by the unhesitating use of his greatpower, that no baron should be able to cope with the king without widecombination with other barons, such as watchful kings could probablyalways prevent; and he dulled the edge of hostile feeling by giving to thegreater barons of the kingdom a function of weight in the management ofaffairs by bringing them into peaceful and legitimate combination in theGreat Council, which he called together three times every year, and whoseadvice he never refused at least to hear. The Council retained , formally at any rate, the right to choose the king, and all laws were declared to beenacted by and with its advice and consent.-842. Character of English Institutional Growth. It has beennoted as a leading characteristic of the constitutional history ofEngland that her political institutions have been incessantly inprocess of development, a singular continuity marking the wholeof the transition from her most ancient to her present forms ofgovernment. It is not a history of breaks or of new establishments, or of successive new creations of instrumentalities oflegislation and administration: all the way through it is a history of almost insensible change, of slow modification, and ofunforced, almost of unconscious, development. Very great contrasts appear between the character of her government in oneage and its character in another age distant one or more cen-370 THE GOVERNMENT OF GREAT BRITAIN.turies from the first; but it is very difficult to perceive anyalteration at all when comparison is made from generation togeneration. Almost no changes can be given exact dates: eachtook place about ' such and such a year, or in this or that longreign. The whole process, therefore, is one which may be outlined in brief epitome: its stages are long, its features large, itsdetails unessential to clearness.843. The Course of Development. -In briefest summary thefacts are these: the Great (or National) Council itself became theParliament of the realm; those of its members, as originally constituted, who were state officers and chief officials of the courtbecame a Permanent royal Council, out of which, in course oftime grew the more modern Privy Council and at length the Cabinet; and those members of the Permanent Council whose dutieswere financial and judicial gradually drew apart from the rest forthe exercise of their functions, their work being finally dividedamong them according to its nature, and the several bodies intowhich they thus fell apart becoming, in the end, the courts ofExchequer, of Chancery, and of common law.844. The Permanent Council. The body of state and courtofficers whom the king kept always about him as his Ordinary 'or Permanent Council were originally all of them members of theGreat Council and seem at first to have acted as a sort of " committee, or inner circle," of that greater body. The Great Councilmet 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 theother hand, were always within easy reach of consultation; theywere in a certain sense picked men out of the larger body of thenational Council; it was natural that they should be consultedby the king and that their advice, given in their collective capacity as a smaller council, should carry with it the weight oftheir connection with the more authoritative Great Council. Asa 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 themore august assembly, being exercised as they were, not intermittently or occasionally, but continuously; not with a mere out-THE GOVERNMENT OF GREAT BRITAIN. 371side acquaintance with the posture of affairs, but with an insideintimacy of knowledge.845. Composition of Permanent Council.- Under the Norman kings the membership of the Permanent Council consisted,usually, of the two archbishops (of Canterbury and of York) , theJusticiar, the Treasurer, the Chancellor, the Steward, the Marshall, the Chamberlain, and the Butler, with the occasional addition of other officials, such as the king's Sergeant, and of suchbishops and barons as the sovereign saw fit from time to time tosummon. There was, however, no fixed rule as to its composition.Possibly every baron, as a member of the Great Council, could, ifhe had so chosen, have attended the sittings of this section of theGreat Council also, which, while the Great Council was not insession, masqueraded as its deputy and proxy. Practically, itwould seem always, as a rule, to have lain within the king'schoice to constitute it how he would.846. The Powers of the Permanent Council were enormous:were as large as those of the king himself, who constituted ithis administrative, judicial, and legislative agent. Its " workwas to counsel and assist the king in the execution of everypower of the crown which was not exercised through the machinery of the common law "; ¹ and "the king could do nearlyevery act in his Permanent Council of great men which he couldperform when surrounded by a larger number of his nobles;except impose taxes on those nobles themselves. " 2 But the Permanent Council very early ceased to act as a whole in the discharge of all its functions alike. Itself a committee, it presently,in its turn, began to split up into committees.847. The Law Courts.―- Men specially learned in the law werebrought into its membership, the later kings not hesitating, whenthe needs of the service demanded, to introduce commoners,as the Council drifted away from even its nominal connection withthe Great Council; and to these the financial and judicial functions of the Crown were more and more exclusively entrusted.(Compare sec. 379. ) It was not long before (a) a separate Courtof Exchequer, which was at first charged principally with the1 Stubbs, Constitutional History of England, Vol. III. , p. 252.2 A. V. Dicey, The Privy Council, p . ii .372 THE GOVERNMENT OF GREAT BRITAIN.audit of finance accounts, had been permanently assigned itsspecial barons ' as Justices, and had acquired jurisdiction overall cases in which the king was directly concerned; (b ) anotherspecial bench of judges received, as a Court of Common Pleas,jurisdiction over all civil cases between subject and subject; (e)still another came to figure as a supreme court, or Court of King'sBench, which always accompanied the sovereign wherever hewent, which was in theory presided over by the king himself, andwhich was empowered to supervise local justice and itself controlall cases not specially set apart for the hearing of other courts; and(d) the Chancellor, who had once been merely president, in theking's absence, of the Permanent Council when it heard appealsin its judicial capacity, absorbed to himself, in his Court ofChancery, the whole of that so-called ' equitable ' function of theCrown by virtue of which the king granted relief to suitors forwhose cases the common law provided no adequate process . TheChancellorship was thus put in the way of attaining to its laterday partial ascendency over the courts of law. ' This process ofthe differentiation and development of the courts began in the earlyyears of the twelfth century and may be said to have been completed by the middle of the fourteenth.848. Parliament. Meantime the national body, the GreatCouncil, from which the Permanent Council and courts had beenderived, had had its own expansions and changes of form and hadtaken on a new character of the utmost significance. Not greatlyaltered in its composition during the century which followed theNorman conquest, the Great Council was profoundly affected bythe outcome of Magna Charta (A.D. 1215) and the momentousconstitutional struggles which followed it. It was then that theprinciple of representation was first introduced into the constitution of Parliament and that commoners as well as nobles weregiven seats in the national assembly. The archbishops, bishops,and abbots attended as of course, as always before, and the earlsand greater barons held themselves equally entitled to be summoned always by special personal summons; but the lesser barons,who formerly had been called to the Council, not by personalsummons, but only by a general summons addressed to them,along with all tenants- in-chief, through the sheriffs of the counties,THE GOVERNMENT OF GREAT BRITAIN. 373had 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 thesheriffs commanded the election of representatives of the lowerclergy and, more important still, of representatives (knights) ofthe shires and (burgesses) of the towns. The Parliament whichEdward I. summoned in 1295 contained all these elements and established the type for the composition of all future Parliaments.849. In the fourteenth clause of Magna Charta John was made topromise that, besides summoning the archbishops, bishops, abbots, earls,and greater barons severally, by special personal letters, he would summon all lesser barons also by a general summons, through the sheriffs andbailiffs. But this general summons failed of the desired effect.850. Representatives from the towns were summoned first in 1265 byEarl Simon of Montfort, who knew that he could count upon the supportof the commons of England in his contest with the king, Henry III . , andwho called burgesses to the Parliament which he constituted during thebrief period of his supremacy in order to give open proof of that support.Edward I. followed Montfort's example in 1295, not because he was deliberately minded to form a truly representative assembly as a wise stepin constitutional development, but because he wanted money and knewthat taxes would be most readily paid if voted by an assembly representing all classes.851. Representatives from the shires ( knights ) had often been calledto Parliament before 1265. Step by step, first one element of the nationand then another had been introduced into Parliament: first the lesserbarons, by general summons, -only, however, to drop out again, thenthe gentry of the shires by election in the counties, finally the burghersof the towns by similar election in county court.6--852. Genesis of the Two Houses. Such a body as the Parliament summoned by Edward was, however, too conglomerate, toolittle hom*ogeneous to hold together. It did not long act as a singleassembly; but presently fell apart into two houses.' Had thelower clergy continued to claim representation, there might andprobably would have been three houses instead of two. But,instead of setting up a separate house in the civil Parliament, theclergy drew apart for the creation of an entirely distinct body,which, under the name of ' Convocation,' was to constitute aseparate ecclesiastical parliament, devoting itself exclusively tothe government of the Church. Their share in the management374 THE GOVERNMENT OF GREAT BRITAIN.of temporal affairs they left altogether to the ' spiritual lords,' thefew greater magnates of the Church who retained their places inthe national council, and to such lay representatives as the clergycould assist in electing to the lower house.853. There were left, therefore, in Parliament two mainelements, lords and commoners. The lords, to whom the archbishops, bishops, and abbots adhered by immemorial wont, formeda house to themselves, the House of Lords. The commonersfrom the towns, who were soon joined by the middle order ofgentry, the knights of the shires, who were neither great lords.summoned by personal summons nor yet commoners, formed theother house, the House of Commons. These changes also werecompleted by the middle of the fourteenth century. Parliamentwas by that time, outwardly, just what it is now.854. The Privy Council.― The Great Council and its directheir, Parliament, were not a little jealous of the enormous powerswielded by the preferred counsellors of the king whom he maintained in permanent relations of confidence with himself, andthrough whom he suffered to be exercised some of the greatestof the royal prerogatives. Especially did the arrangement seemobnoxious when the vitality of the Permanent Council passedto a still smaller ' Privy Council. This body was to the Permanent Council what the Permanent Council had been to theGreat Council. It was still another " inner circle. " It emergedduring the reign of Henry VI. (1422-1461) . The PermanentCouncil had become too large and unwieldy for the continuanceof its intimate relations with the sovereign; it could no longerbe used as a whole for purposes of private advice and resolution;and the king separated from the ordinary ' councillors certainselected men whom he constituted his Privy Council, bindingthem to himself by special oaths of fidelity and secrecy. Fromthat moment the Permanent Council was virtually superseded, andthe Privy Council became the chief administrative and governing body of the realm .-855. The Privy Council assumes Judicial Powers. Many ofthe judicial prerogatives which really belonged to the king whensitting in his Great Council, or Parliament, had been claimed forthe king's Permanent Council: hence the distinct law courtsTHE GOVERNMENT OF GREAT BRITAIN. 375which were developed from its midst (sec. 847); and the samerights of exercising the powers of a court which had beenassumed by the Permanent Council were in the later time arrogated to itself by the Permanent Council's proxy, the PrivyCouncil. Out of it came, in course of time, the well-rememberedCouncil of the North, the hated Star Chamber, and the odiousHigh Commission Court, which were not abolished until 1641 ,when that great revolution had fairly set in, which was to crusharbitrary executive power forever in England, and to usher in thecomplete supremacy of Parliament.856. Origin of the Cabinet. Meanwhile, long before the parliamentary wars had come to a head, the same causes that hadproduced the Permanent and Privy Councils had again assertedtheir strength and produced the Cabinet, still a third " innercircle," this time of the Privy Council; a small body selected forspecial confidence by the king from the general body of hiscounsellors, and meeting him, not in the larger council chamber,but in a cabinet, ' or smaller room, apart. The Privy Councilhad, in its turn, become "too large for despatch and secrecy.The rank of Privy Councillor was often bestowed as an honorarydistinction on persons to whom nothing was confided, and whoseopinion was never asked. The Sovereign, on the most importantoccasions, resorted for advice to a small knot of leading ministers.The advantages and disadvantages of this course were earlypointed out by Bacon, with his usual judgment and sagacity; butit was not till after the Restoration that the interior Councilbegan to attract general notice. During many years old-fashionedpoliticians continued to regard the Cabinet as an unconstitutionaland dangerous board. Nevertheless, it constantly became moreand more important. It at length drew to itself the chief executive power, and has now been regarded during several generationsas an essential part of our polity. Yet, strange to say, it stillcontinues to be altogether unknown to the law. The names ofthe noblemen and gentlemen who compose it are never officiallyannounced to the public; no record is kept of its meetings andresolutions; nor has its existence ever been recognized by anyAct of Parliament. " 1 Fri.1 Macaulay, History of England, Vol. I. , pp. 197, 198 ( Harper's ed. , 1849) .376 THE GOVERNMENT OF GREAT BRITAIN.857. The Development of the Cabinet. - The Cabinet first comesdistinctly into public view as a preferred candidate for the highestexecutive place in the reign of Charles II. It is now the centralbody of the English Constitution. The steps by which it approached its present position are thus summarized by a distinguished English writer: -" (1) First we find the Cabinet appearing in the shape of asmall, informal, irregular Camarilla, selected at the pleasure ofthe Sovereign from the larger body of the Privy Council, consulted by and privately advising the Crown, but with no powerto take any resolutions of State, or perform any act of governmentwithout the assent of the Privy Council, and not as yet evencommonly known by its present name. This was its conditionanterior to the reign of Charles I."(2) Then succeeds a second period, during which this Council of advice obtains its distinctive title of Cabinet, but withoutacquiring any recognized status, or permanently displacing thePrivy Council from its position of de facto as well as de jure theonly authoritative body of advisers of the Crown. (Reign ofCharles I. and Charles II., the latter of whom governed duringa part of his reign by means of a Cabinet, and towards its closethrough a reconstructed ' Privy Council. )" (3) A third period, commencing with the formation byWilliam III." of a ministry representing, not several parties,as often before, but the party predominant in the state, “ thefirst ministry approaching the modern type. The Cabinet,though still remaining, as it remains to this day, unknown tothe Constitution, " had " now become de facto, though not de jure,the real and sole supreme consultative council and executive authority in the State." It was " still, however, regarded withjealousy, and the full realization of the modern theory of ministerial responsibility, by the admission of its members to a seat inParliament," was " only by degrees effected.-"(4) Finally, towards the close of the eighteenth century, thepolitical conception of the Cabinet as a body, necessarily consisting (a) of members of the Legislature ( b) of the same political views, and chosen from the party possessing a majority inthe House of Commons; (c) prosecuting a concerted policy; (d)THE GOVERNMENT OF GREAT BRITAIN. 377under a common responsibility to be signified by collective resignation in the event of parliamentary censure; and (e) acknowledging a common subordination to one chief minister, tookdefinitive shape in our modern theory of . the Constitution, andso remains to the present day. ” ¹-―—―858. Parliament and the Ministers. The principles concerning the composition of the modern Cabinets which are stated inthis last paragraph of Mr. Traill's summary may be said to havebeen slowly developed out of the once changeful relations betweenParliament and the ministers of the Crown. As I have said (sec.854) , the national council very early developed a profound jealousy of the power and influence of the small and private councilof state and court officials which the king associated with himselfin the exercise of his great prerogatives. By every means itsought to control the ministers. Abandoning very soon, as revolutionary, all efforts to hold the king himself personally responsible for executive acts, Parliament early accepted the theory thatthe king could do no wrong; that breaches of law and of rightcommitted by the government were committed always,- so thetheory ran, by the vicious advice of the king's personal advisers;they could do wrong (here the theory shaded off into fact) , andthey should be held responsible for all the wrong done. So earlyas the close of the twelfth century the Great Council deposed William Longchamp, Justiciar and Chancellor of Richard I. , for abuseof power. During the fourteenth century Parliament claimed and .once or twice exercised the right to appoint ministers and judges;it beheaded Edward II.'s Treasurer and imprisoned his Chancellor for their part in Edward's illegal acts; and at the close of thecentury (1386) it impeached Michael de la Pole, Richard II.'sminister, notwithstanding the fact that he was able to plead theking's direct commands in justification of what he had done. Inthe seventeenth century a new ground of impeachment 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 for bad advice to theCrown, for gross mistakes of policy as well as for overt breachesof law and of constitutional rights.1 H. D. Traill, Central Government ( English Citizen Series) , pp. 23–25.378 THE GOVERNMENT OF GREAT BRITAIN.859. Disappearance of Impeachment. The Act of Settlementand the policy of William and Mary inaugurated, however, thefinal period of Parliament's supremacy. Parliament's preferencesbegan to be regarded habitually in the choice of ministers, andimpeachment, consequently, began gradually to fall into disuse.Its place was taken by parliamentary votes, finally by votes ofthe House of Commons alone. Ministers who cannot command amajority in the House of Commons for the measures which theypropose resign, and Parliament has its own way concerning theconduct of the government.860. The Executive. The Executive, under the English system, so far as it may be described at once briefly and correctly,may be said to consist, therefore, of the Sovereign and a Cabinetof ministers appointed with the Sovereign's formal consent.real authority is with the Cabinet; though the ministers are, inlaw, only the Sovereign's advisers, and the government is conducted in the Sovereign's name. The true place of the Sovereignin the system is that of an honored and influential hereditarycouncillor, 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, apermanent minister, differing from the other ministers chieflyin not being responsible to Parliament for his acts, and on thataccount less powerful than they.861. The Sovereign is not a member of the Cabinet because George I.could not speak English . Until the accession of George I. the king alwaysattended Cabinet councils; George did not do so because he could noteither understand or be understood in the discussions of the ministers.Since his time, therefore, the Sovereign has not sat with the Cabinet. Asimilar example of the interesting ease with which men of our race establishand observe precedents is to be found in the practice on the part of Presi- dents of the United States of sending written messages to Congress.Washington and John Adams addressed Congress in person on publicaffairs; but Jefferson , the third President, was not an easy speaker, andpreferred to send a written message. Subsequent Presidents followed hisexample as of course. Hence a sacred rule of constitutional action!1 Since the throne of England is generally occupied by a man, it is mostconvenient to use ' king ' as the distinctive title of the Sovereign in everygeneral statement of constitutional principles.THE GOVERNMENT OF GREAT BRITAIN. 379862. Position of the Cabinet. — The Cabinet consists of theprincipal ministers of state and has reached its present positionof power in the government because of its responsibility toParliament. The chief interest of English constitutional history centres in the struggle of Parliament to establish itssupremacy over all other authorities in the conduct of the government; that struggle issued in the last century in the complete triumph of Parliament; it has reached its farthest logicalconsequence in our own century in the concentration of parliamentary authority in the popular house of Parliament, the Houseof Commons. Parliament always claimed the right to direct inthe name of the people, of the nation; that was the solid basisof all its pretensions; and so soon as reforms in the compositionof the House of Commons had made it truly representative ofthe people, the House of Lords, which represents the hereditary,not the representative, principle, necessarily lost some part of itspolitical authority. It is constantly recruited, by the creation ofpeerages, from all classes of successful men, scientists, manufacturers, lawyers, diplomatists, journalists, poets; but it is recruitedby appointment, not by election; its votes are not controlled bythe electorate; and precedence in affairs has fallen to the people'schamber.863. Appointment of the Cabinet Ministers. The responsibility of the ministers to Parliament constitutes their strengthbecause it makes them the agents of Parliament: and the agentsof a sovereign authority virtually share its sovereignty. Theking appoints only such ministers as have the confidence of theHouse of Commons; and he does it in this way: he sends forthe 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 assumingsuch a responsibility, he accepts the commission, and, usuallyafter due consultation with other prominent members of hisparty, gives to the Sovereign a list of the men whom he recommends for appointment to the chief offices of state. These theSovereign appoints and commissions as of course. They arealways men chosen from among the members of both houses ofParliament, and generally because they have proved there their380 THE GOVERNMENT OF GREAT BRITAIN.ability to lead. They have, so to say, chosen themselves by acareer of steady success in the debates of the Houses: theyhave come to the front by their own efforts, by force of their ownability, and usually represent tried parliamentary capacity. Suchcapacity is necessary for their success as ministers; for, after theyhave entered the Cabinet, they constitute, in effect, a committeeof the majority of the House of Commons, commissioned to leadParliament in debate and legislation , to keep it, — and, throughit, the country at large, informed concerning all importantaffairs of state which can prudently be made public, and to carryout in the conduct of the government the policy approved of bythe representatives of the people.864. Composition of the Cabinet. —The Cabinet does not consistinvariably of the same number of minister. Eleven officials always haveseats in it; namely, the First Lord of the Treasury, the Lord Chancellor,the Lord President of the Council, the Lord Privy Seal, the Chancellorof the Exchequer, the five Secretaries of State (for Home Affairs, forForeign Affairs, for the Colonies, for India, and for War) , and the FirstLord of the Admiralty. To these are generally added from three to sixothers, according to circ*mstances: often, for instance, the President ofthe Board of Trade, generally of late the Chief Secretary for Ireland ,frequently the President of the Local Government Board. The generalrule which governs these additions is, that every interest which is likelyto be prominent in the debates and proceedings of the House of Commonsought to have a Cabinet minister to speak for it and to offer to the Houseresponsible advice. The word ' Ministry ' is of wider meaning than theword ' Cabinet. ' The Ministry ' consists of all those executive officerswho have seats in Parliament. These are the political ' officers, who areexpected to resign their offices when the Cabinet is defeated in the Commons. But not all of them are members of the Cabinet. The Cabinetof Lord Salisbury consists ( 1897 ) of nineteen persons; but besides thesethere are forty non- Cabinet ministers in Parliament. ( Compare sec. 886. )"865. No member of the House of Commons may accept office withoutthe approval of his constituents. Upon receiving an appointment asininister he must resign his seat in the House and seek reëlection, asrepresentative plus minister. The whole matter is merely formal, how- ever, in most cases. The opposite party do not usually, under such circ*mstances, contest the seat a second time, and the minister is reëlected without opposition.866. The custom of the Sovereign's selecting only the chief ministerand intrusting him with the formation of a ministry also, as well as theTHE GOVERNMENT OF GREAT BRITAIN. 381Sovereign's absence from Cabinet meetings, originated with George I.,who did not know enough of English public men to choose all the ministers, and so left the choice to Walpole.867. This method of forming a ministry is the outcome of Parliament's efforts to hold the king's ministers to a strict responsibility to itself. None but members of their own party would suitthe majority in Parliament as ministers; and since the ministershave to explain and excuse their policy to the Houses it is bestthat they should be members of the Houses with the full privileges of the floor. Only by such an arrangement could the fullharmony desired between Parliament and the ministers be maintained by face to face intercourse.

-----868. Ministerial Responsibility. If the ministers are defeatedon any important measure in the House of Commons, or if anyvote of censure is passed upon them in that House, they mustresign, such is the command of precedent, and another ministry must be formed which is in accord with the new majority.The ministers must resign together because the best form ofresponsibility for their conduct of the government can be securedonly when their measures are taken in concert, and the House ofCommons would be cheated of all real control of them if theycould, upon each utterance of its condemnation of an executiveact, or upon each rejection by it of a measure proposed or supported by them, throw overboard ' only those of their numberwhose departments were most particularly affected by the vote,and so keep substantially the same body of men in office.6Ifa defeated or censured ministry think that the House of Commons in its adverse vote has not really spoken the opinion ofthe constituencies, they can advise the Sovereign to dissolve theHouse and order a new election; that advice must be taken bythe Sovereign; and the ministers stand or fall according to thedisposition of the new House towards them.869. It should be added that exceptional cases do sometimes arise inwhich responsibility for an objectionable course of action can be so plainlyand directly fixed upon a particular minister, who has acted , it may be,without the concurrence, possibly without the knowledge, of his colleagues, that his separate dismissal from office is recognized as the onlyproper remedy. A notable instance of this sort arose in England in 1851 ,382 THE GOVERNMENT OF GREAT BRITAIN.when Lord Palmerston, then foreign secretary, was dismissed from officefor adding to various other acts of too great independence an unauthorizedexpression of approval of the coup d'état of Louis Napoleon in France.-870. Legal Status of the Cabinet. —The peculiar historical origin ofthe Cabinet appears in a statement of its position before the law. As wehave seen (sec. 856) , it is not a body recognized by law: its existence,like the existence of not a few other political institutions in England, isonly customary. The particular ministers who form the Cabinet have thelegal right to be the exclusive advisers of the Crown, - that is, the soleexecutive power, only by virtue of their membership of the Privy Council. They must all be sworn into the membership of that body before theycan act as confidential servants of the Sovereign. The Privy Council itself,however (as a whole, that is) , has not been asked for political advice fortwo centuries. It takes no part whatever in the function which twelve orfifteen ministers exercise by virtue of belonging to it; it is not responsiblefor the advice they give; and it cannot in any way control that advice .Membership of the Privy Council, moreover, is for life. The leaders ofthe minority in the Commons, having themselves once been ministers, arestill members of the Council and have still the same legal right to advisethe Crown.871. Initiative of the Cabinet in Legislation. Having inherited the right of initiative in legislation which once belonged tothe Crown, the Cabinet shape and direct the business of theHouses. Most of the time of Parliament is occupied by the consideration of measures which they have prepared and introduced;at every step in the procedure of the Houses it is the duty of theministers to guide and facilitate business.•872. The Prime Minister. - "Consistency in policy and vigor inadministration " on the part of the Cabinet are obtained by its organization under the authority of one First ' Minister. This Prime Ministergenerally holds the office of First Lord of the Treasury, though it is withinhis choice to hold another, if he will. It is not the office which gives himprimacy in the Cabinet, but his recognized weight as leader of his party.The leader chosen by the Sovereign to form the ministry stands at its headwhen formed. He usually chooses to occupy the office of First Lord of theTreasury because the official duties of that place are nominal only andleave him free to exercise his important functions as leader of the party inpower.873. The Departments of Administration.- So much for the relations of the Cabinet to the Sovereign and to Parliament. Whenwe turn to view it in its administrative and governing capacity asTHE GOVERNMENT OF GREAT BRITAIN. 383the English Executive, we see the ministers as heads of departments, as in other governments. But the departments of thecentral government in England are by no means susceptible of-brief and simple description as are those of other countries, whichhave been given their present forms by logical and self-consistentwritten constitutions, or by the systematizing initiative of absolutemonarchs. They hide a thousand intricacies born of that composite development so characteristic of English institutions.874. 6 -The Five Great Offices ' of State. Not attempting detail,however, it is possible to give a tolerably clear outline of the central administration of the kingdom in comparatively few words.The Treasury I shall describe in a separate paragraph (sec. 879).The Home Office superintends the constabulary; oversees, to alimited extent, the local magistracy and the administration ofprisons; advises the Sovereign with reference to the granting ofpardons; and is the instrument of Parliament in carrying outcertain statutes restricting at some points the employment oflabor. The Foreign Office describes itself. So do also, sufficiently,the Colonial Office, the Wdr Office, and the India Office.875. These five great Offices ' are all, historically considered , in a certain sense offshoots from a single office , that of the king's Principal Secretary of State. By one of the usual processes of English constitutionaldevelopment, an officer bearing this title very early came into existence asone of the most trusted ministers of the Crown. At first only a speciallyconfided-in servant of the Sovereign, employed in all sorts of confidentialmissions, he gradually assumed a more regular official place and began toabsorb various important functions. At length it became necessary todouble him and to have two Principal Secretaries of State, two men theoretically sharing one and the same office, and alternates of each other.At last he has, for the sake of convenience, been quintupled. Thereare five Principal Secretaries of State, all , in theory, holding the sameoffice , and each, in theory, legally authorized to perform the functions ofany or all of the others; but in fact, of course, keeping each to a distinctdepartment. There is a Principal Secretary of State for the HomeDepartment, a Principal Secretary of State for Foreign Affairs, a Principal Secretary of State for the Colonies, a Principal Secretary of State forWar, and a Principal Secretary of State for India. It is an interestingand characteristic case of evolution.876. The Admiralty, the Board of Trade, and the Local Government Board. The Admiralty is the naval office. It is presided384 THE GOVERNMENT OF GREAT BRITAIN.1over by a Commission of six, consisting of a chairman, entitledFirst Lord of the Admiralty, and five Junior Lords. The Boardof Trade is, in form, a committee of the Privy Council . It isreconstituted at the opening of each reign by an order in Coun--cil. It consists, nominally, of " a President and certain ex officiomembers, including the First Lord of the Treasury, the Chancellor of the Exchequer, the Principal Secretaries of State, theSpeaker of the House of Commons, and the Archbishop of Canterbury. " But it has long since lost all vital connection withthe Privy Council and all the forms even of board action. ItsPresident is now practically itself. Its duties and privileges areboth extensive and important. It advises the other departmentsconcerning all commercial matters, and is the statistical bureau ofthe kingdom; it exercises the state oversight of railways, inspectspassenger steamers and merchant vessels, examines and commissions masters and mates for the merchant marine, administers thestatutes concerning harbors, lighthouses, and pilotage, providesstandard weights and measures, superintends the coinage, andsupervises the Post Office. The Local Government Board, whichis also in form a committee of the Privy Council, has also inreality none of the characteristics either of a committee or of aboard . It is a separate and quite independent department, underthe control of a President. Its other, nominal, members, theLord President of the Council, the five Principal Secretaries ofState, the Lord Privy Seal, and the Chancellor of the Exchequer,in reality take no part in its management. It is, in effect, theEnglish 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 government," duties more important to the daily goodgovernment of the country than those of any other department.It also specially examines and reports upon every private billaffecting private interests.-877. The Board of Agriculture . In 1889 still another departmentwas set up which was to be in form a Board but in fact in charge of asingle minister, its President. Since 1883 there had been a Committee ofthe Privy Council charged with the special superintendence of the agri1 Traill, pp. 126 , 127 .THE GOVERNMENT OF GREAT BRITAIN. 385cultural interests of the kingdom; in 1889 it was given a more definiteorganization and larger powers , under the name of The Board of Agri- culture , — a Board to consist nominally of the Lord President of the Council , the five Principal Secretaries of State, the First Commissioner of theTreasury, the Chancellor of the Exchequer, the Chancellor of the Duchyof Lancaster, and the Secretary for Scotland; but really to be under thedirection of none of these gentlemen, but of its own independent President.The duties of the Board embrace, besides the collection and publication ofall information likely to be serviceable to the agricultural interest and theconduct and encouragement of inquiries and investigations touching agricultural processes and conditions and concerning the culture of forests,the inspection and subvention of schools in which instruction is given insuch subjects, the duties hitherto attaching to the offices of the Land Commissioners and of the Commissioners of Works and Public Buildings, theenforcement of the acts concerning contagious diseases among animals,and a miscellany of duties of like kinds.878. The Post Office is in England a subdivision of the Board ofTrade. At its head is a Postmaster General. It controls, besides theusual business of a post-office department, the telegraph system of thecountry, which is owned by the government; and it has also under itsdirection a useful postal savings-bank system.879. The Treasury. The history of this department, whichmay be reckoned the most important, may serve as another typical example of English departmental evolution . Originally thechief financial minister of the Crown was the Lord High Treasurer, with whom was associated at an early date a Chancellor ofthe Exchequer. But in the reign of George I. the great office ofLord High Treasurer was, in English phrase, put permanently'into commission ': its duties, that is, were intrusted to a boardinstead of to a single individual. This board was known as the"Lords Commissioners for executing the office of Lord HighTreasurer," and consisted of a First Lord of the Treasury, theChancellor of the Exchequer, and three others known as JuniorLords. Evolution speedily set in, as in other similar Englishboards. That is, the board ceased to act as a board. Its functions became concentrated in the hands of the Chancellor of theExchequer; the First Lordship, occupied almost invariably since1762 bythe Prime Minister, gradually lost all connection, exceptthat of honorary chairmanship, with the Treasury Commission,its occupant giving all his energies to his political functions (sec.386 THE GOVERNMENT OF GREAT BRITAIN.872); and the Junior Lords were left none but parliamentaryduties."880. The Chancellor of the Exchequer, therefore, is the workinghead of the Treasury Department, and as such plays one of themost conspicuous and important rôles in the government of thecountry. He controls the revenue and expenditure of the state,submitting to Parliament, in the form of an annual budget, 'careful comparisons of the sums needed for the public service andof the sums that may be expected to accrue from existing or possible sources of revenue, together with proposals to extend orcurtail taxation, according as there is prospect of a deficit or of asurplus under existing arrangements.881. The Estimates. The various departments make up their ownestimates; but these are subjected to a careful examination by the Chancellor of the Exchequer, and with him rests the prerogative of revisingthem where they may seem to admit of or to require revision. Thuschanges in the clerical forces of the departments or redistributions of theirwork among sub-departments, etc. , cannot, if they involve additionalexpense, be made without express approval by the Treasury.882. Mr. Gladstone twice, with characteristic energy, held, when PrimeMinister, both the office of First Lord of the Treasury and the office ofChancellor of the Exchequer, thus in effect once more bringing the FirstLord into vital connection with his nominal department.883. Administrative Departments of the Privy Council.Though superseded as advisory council to the Crown by the Cabinet and deprived of all actual executive control by the virtualerection of its several boards into independent departments, thePrivy Council still has one or two vital parts. Chief amongthese is The Education Department, which consists of the LordPresident of the Council, as nominal chief, a Vice- President asworking chief, and certain ex officio members, among them theChancellor of the Exchequer and the Secretary of State for HomeAffairs, and which is charged with the administration of the public educational system of the country. This committee preservesin a rather more than formal way its collegiate character. Theimportant judicial duties of the Privy Council I shall speak ofin another connection (sec. 924).884. The Lord Privy Seal exercises no important functions exceptthose of keeping the great Seal of State and affixing it to such publicTHE GOVERNMENT OF GREAT BRITAIN. 387documents as need its formal attestation; but the office is a ' Cabinetoffice . ' The lightness of its duties leaves its incumbent the freer for hisCabinet functions of counsel. It is a berth for elderly men of intellectualand political weight who cannot or will not undertake onerous official duties.885. The Chancellor of the Duchy of Lancaster holds an officewhose duties ( entirely legal and local) have all been delegated by longstanding custom to a Vice- Chancellor; but eminent politicians are broughtinto the Cabinet through this sinecure Chancellorship in order that theymay give the ministry the benefit of their advice and countenance.886. Political Under Secretaries. There are often associated withthe principal ministers of state certain political ' Under Secretaries,whose function is one of very considerable importance. A political UnderSecretary is one who goes in or out of office with his party, not having aplace in the Cabinet but sharing its fortunes in the Commons. He is parliamentary spokesman for his chief. If the foreign minister, for instance,or any other member of the Cabinet, the affairs of whose department maybe expected to call forth frequent comment or question in the lower House,be a member of the House of Lords, he is represented in the Commonsby an Under Secretary, who there speaks as the minister's proxy. Therepresentation of the ministers in both Houses is thus secured . (Comparesec. 864. )Jnes:887. Administration of Scotland and Ireland . -- The affairs ofScotland are cared for through the agency of a Lord Advocatefor 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 theministry, and the official spokesman of the ministers regardingScotch business in the House of Commons. Officially the LordAdvocate ranks as a subordinate of the Secretary of State forHome Affairs. The Irish executive is, formally at least, separate from the English, being vested in a Lord Lieutenant anda Privy Council; but in fact it is completely controlled by theEnglish Cabinet though the Chief Secretary to the Lord Lieutenant, who is always a member of the House of Commons and, whenIrish affairs are specially prominent, a member of the Cabinetalso; and who, though in titular rank a subordinate of the LordLieutenant, is, by virtue of his relations to the Cabinet and toParliament, in effect his master.888. The Lord Chancellor, the only regular member of the Cabinetwhose duties I have not yet indicated , is a judicial and legislative officer.His functions will be mentioned in another connection ( sec. 925) .388 THE GOVERNMENT OF GREAT BRITAIN.889. The Cabinet as Executive. It would be a great mistaketo suppose that, because the Cabinet is in reality a committee ofthe House of Commons, drawing all its authority from the confidence reposed in it by that chamber, it is a mere committee, possessing no separate importance as the executive body of thekingdom. In a sense the ministers have inherited the ancientprerogatives of the Crown; and Parliament is, in a very sensibledegree, dependent upon them for the efficacy of the part it is toplay in governing. Almost all important legislation waits fortheir initiative, and the whole business of the Houses to a greatextent depends upon them for its progress . They can maketreaties, of whatever importance, with foreign countries; theycan shape the policy of the mother country towards her colonies;they can take what serious steps they please with reference tothe government of India, can place troops and naval forces atpleasure, can make a score of momentous moves of policy towardsthe English dependencies and towards foreign countries, in thefield , that is, of many of the largest interests of the Empire,which may commit the country to the gravest courses of action;—and all without any previous consultation with Parliament,whom they serve . The House of Commons, in brief, can punishbut cannot prevent them.890. Parliament: I. the House of Commons; its Original Character. "The Parliament of the nineteenth century is, in ordinary speech, the House of Commons. When a minister consultsParliament he consults the House of Commons; when the Queendissolves Parliament she dissolves the House of Commons. Anew Parliament is merely a new House of Commons. " 1 Suchhas been the evolution of English politics . But the processeswhich worked out this result were almost five centuries long.During a very long period, Parliament's first and formativeperiod, the Commons held a position of distinct and naturalsubordination to the Lords, lay and spiritual; the great constitutional rôles were played by the king and baronage. The commoners in Parliament represented the towns, and spoke, for themost part, at first, only concerning the taxes they would give.1 Spencer Walpole, The Electorate and the Legislature ( English CitizenSeries ) , p. 48 .THE GOVERNMENT OF GREAT BRITAIN. 389When the house of Parliament called the House of Commonsfirst assumed a distinct separate existence, about the middle ofthe fourteenth century (sec . 852) , it was by no means a hom*ogeneous body. It held both the knights of the shires and theburgesses of the towns; and it was a very long time before theknights forgot the doubt which had at first been felt as to whichhouse they should sit with, Lords or Commons. They were menof consideration in their counties; the only thing in commonbetween them and the men from the towns was that election, andnot hereditary possessions or rank, was the ground of their presence in Parliament. Long use, however, finally obscured suchdifferences between the two groups of members in the lowerHouse; their interests were soon felt to be common interests,because the chief questions they had a real voice in deciding werequestions of taxation, which touched all alike.891. Historical Contrasts between County and Borough Representatives. The main object of the Crown in making the Commons as representative as possible would seem to have been tobring the whole nation, as nearly as might be, into coöperationin support of the king's government: and at first the lower Housewas a truly representative body. The knights of the shires wereelected " in the county court, by the common assent of the wholecountry "; the burgesses of the towns were chosen by the boroughfreemen, a body numerous or limited according to the charter ofeach individual town, but generally sufficiently broad to includethe better class of citizens. It was the decay of the towns andthe narrowing of their franchises which made the Commonsof the closing decades of the last century and the first decades ofour own the scandalously subservient, unrepresentative Commonswhich drove the American colonies into revolt. So early as thereign of Henry VI. , in the first half, that is, of the fifteenth century, the franchise was limited in the counties to freeholderswhose landed property was of an annual value of forty shillings,and forty shilling freeholders were then men of means; but thisfranchise remained unchanged until the parliamentary reforms of11 Forty shillings, it is estimated, were equivalent at that time in purchasing value to eighty pounds at present ( $400) . See J. E. T. Rogers,Economic Interpretation of History, p. 32.390 THE GOVERNMENT OF GREAT BRITAIN.the present century, and tended steadily, with the advancingwealth of the country and the relative decrease in the value ofthe shilling, to become more inclusive and more liberal. Theborough franchise, on the contrary, went all the time steadilyfrom bad to worse. It became more and more restricted, and thetowns which sent representatives to Parliament became, partlyby reason of their own decay, partly by reason of the growth andnew distribution of population in the kingdom, less and less fittedor entitled to represent urban England. New boroughs had beengiven representatives from time to time; but all efforts to redistribute representation had virtually ceased before the dawn ofthe period of that great increase of population and that immensedevelopment of wealth and industry which has made modernEngland what it is . The towns which returned members to theHouse of Commons were mostly in the southern counties wherethe old centres of population had been. Gradually they had lostimportance as the weight of the nation shifted to the central andwestern counties and Liverpool, Manchester, and Birminghamgrew up, and not their importance only, but their inhabitantsas well. Some fell into ruins and merged in neighboring properties, whose owners pocketed both them and their parliamentaryfranchise; others, which did not so literally decay, becameequally subject to the influence of neighbor magnates upon whomthe voters felt more or less dependent; and at last the majorityof seats in the Commons were virtually owned by the landedclasses represented in the House of Lords.892. The House of Commons consisted in 1801 of 658 members, andof these 425 are said to have been returned " on the nomination or onthe recommendation of 252 patrons. " It is said, also, that " 309 outof the 513 members belonging to England and Wales owed their election to the nomination either of the Treasury or of 162 powerful individuals. " 1893. Geographical Relations of Boroughs and Counties. -Boroughpopulations had no part in the election of county members. The countiesrepresented in Parliament were rural areas , exclusive of the towns. Thusthe county of Derby was, for the purposes of parliamentary representation,the county of Derby minus its boroughs.1 Walpole, p. 55.THE GOVERNMENT OF GREAT BRITAIN. 391894. Parliamentary Reform. It was to remedy this state ofthings that the well-known reforms of the present century wereundertaken. Those reforms have made the House of Commonstruly representative and national: and in making it national havemade it dominant. In 1832 a wholesale redistribution of seatswas accomplished, and a complete reformation of the franchise.The decayed towns were deprived of their members, and the newcentres of population were accorded adequate representation.The right to vote in the counties was extended from those whoowned freeholds to those who held property on lease and thosewho held copyhold estates, ' and to tenants whose holdings wereof the clear annual value of fifty pounds. The borough franchisewas put upon the uniform basis of householders whose houseswere worth not less than ten pounds a year. This was puttingrepresentation into the hands of the middle, well- to- do classes;and with them it remained until 1867. In 1867 another redistribution of seats was effected, which increased the number ofScotch members from fifty- four to sixty and made other important readjustments of representation. The franchise was at thesame time very greatly widened. In the boroughs all householders and every lodger whose lodgings cost him ten poundsannually were given the right to vote; and in the counties, besidesevery forty shilling freeholder, every copyholder and leaseholderwhose holding was of the annual value of five pounds, and everyhouseholder whose rent was not less than twelve pounds a year.Thus representation stood for almost twenty years . Finally, in1884, the basis of the present franchise was laid. The qualifications for voters in the counties were made the same as the qualifications fixed for borough electors by the law of 1867, and overtwo millions and a half of voters were thus added to the activecitizenship of the country. There is now a uniform ' householdand lodger franchise ' throughout the kingdom .895.6Occupier ' is used in England as synonymous with the wordlodger. The occupation ' requisite for the exercise of the franchise mustbe of a "clear annual value of £10. " Occupation " by virtue of any1 Copyhold estates are estates held by the custom of the manor in whichthey lie, a custom once evidenced by a ' copy ' of the rolls of the ManorCourt.392 THE GOVERNMENT OF GREAT BRITAIN.office, service, or employment " is considered, for the purpose of the franchise, equivalent to occupation for which rent is paid, if the rent wouldcome to the required amount, if charged.896. In 1885 another great Redistribution Act was passed, whichmerged eighty-one English, two Scotch, and twenty- two Irishboroughs in the counties in which they lie, for purposes of representation; gave additional members to fourteen English, threeScotch, and two Irish boroughs; and created thirty- three newurban constituencies. The greater towns which returned severalmembers were cut up into single-member districts, and a like arrangement was effected in the counties, which were divided intoelectoral districts to each of which a single representative wasassigned. These changes were accompanied by an increase oftwelve in the total number of members. Through the redistribution of seats in 1832 and 1867 the number had remained 658; itis now 670.thed.897. Multiple Voting. It is the peculiar feature of the English lawgoverning the franchise that individual voters who have the requisiteamount of property or interest in more than one constituency are entitledto vote for members of the House in as many parliamentary districts asthey hold the necessary amount of property in; and, inasmuch as theelections are not held everywhere upon the same day, it is possible forone man to vote in several places , for as many several members.898. The following is an analysis of the present membership of theHouse of Commons given in the Statesman's Year Book for 1897: 2the English counties return 253 members, the English boroughs 237, theEnglish Universities 5; Scotch counties 39, boroughs 31 , universities 2;Irish counties 85, boroughs 16, universities 2. Totals counties 377,boroughs 284, universities 9.899. One unusual feature of the reforms of 1884-1885 was that theyapplied to Scotland and Ireland as well as to England and Wales. EarlierActs had applied only to England and Wales, special Acts governing thefranchise and representation in Ireland and Scotland. The Irish delegation in the House of Commons is now for the first time truly representative of the Irish people.900. The legislation of 1885, by dividing the greater towns into singlemember constituencies, abolished the three-cornered constituencies '1 This was establishing what the French, as we have seen ( sec . 402 ) ,would call scrutin d'arrondissem*nt.2 Where other data also will be found.THE GOVERNMENT OF GREAT BRITAIN. 393which had been devised in 1867 for purposes of minority representation.Voters in places which returned more than two members had been allowedone vote less apiece in parliamentary elections than the number of members to be chosen. Thus, if any place returned four members, forexample, each voter was entitled to vote for three and no more: it beinghoped that the minority would by proper management under this plan beable to elect one out of the four. The plan was not found to work well inpractice, and has accordingly been abandoned.901. Election and Term of the Commons. - Members of theHouse of Commons are elected, by secret ballot, for a term ofseven years. Any full citizen is eligible for election exceptpriests and deacons of the Church of England, ministers of theChurch of Scotland, Roman Catholic priests, and sheriffs andother returning officers, and except, also, English and Scotchpeers. Irish peers not elected to the Lords are eligible and haveoften sat in the House. The persons thus excepted, all savethe peers, at least, can neither sit nor vote.902. As a matter of fact no House of Commons has ever lived its fullterm of seven years . A dissolution , for the purpose of a fresh appeal tothe constituencies, has always cut it off before its statutory time . Theaverage duration of Parliaments has been less than four years. Thelongest Parliament of the present century ( elected in 1820) lived six years,one month, and twelve days.903. The use of the secret ballot does not rest upon any permanentstatute. In 1872 its use was voted for one year; and ever since theprovision has been annually renewed.904. There is no property qualification for election to the House now,as there was formerly; but the members receive no pay for their services;and, unless their constituents undertake to support them, -as was donein the early history of Parliament, and has been done again in somerecent instances, - this fact constitutes a virtual income qualification.905. Summons, Electoral Writ, Prorogation . No standingstatutes govern the time for electing Parliaments. Parliamentassembles upon summons from the Crown (which, like all otheracts of the Sovereign, now really emanates from the ministers);and the time for electing members is set by writs addressed tothe sheriffs, as of old (sec. 848) . Parliament is also ' prorogued' (adjourned for the session), by the Sovereign (that is,1 Lord Palmerston, for example, was an Irish peer.394 THE GOVERNMENT OF GREAT BRITAIN.the Cabinet); and assembles again, after recess, by specialsummons.906. The summons for a new Parliament must be issued at leastthirty- five days before the day set for its assembling; the summons toa prorogued Parliament at least fourteen days beforehand. It is now the invariable custom to assemble Parliament once every year about themiddle of February, and to keep it in session from that time till about the middle of August.907. If a seat fall vacant during a session, a writ is issued for anelection to fill it upon motion of the House itself; if a vacancy occur during a recess, the writ is issued at the instance of the Speaker of theHouse.908. Since 1867 the duration of Parliament has not been liable to beaffected by a demise of the Crown; before 1695 Parliament died with themonarch. In that year it was enacted that Parliament should last for sixmonths after the demise of the Crown, if not sooner dissolved by the newSovereign. Parliament, it is now provided, must assemble immediatelyupon the death of the Sovereign. If the Sovereign's death take placeafter a dissolution and before the day fixed for the convening of the newParliament, the old Parliament is to come together for six months, ifnecessary, but for no longer term.909. Organization of the House. The Commons elect theirown Speaker (Spokesman); their clerk and sergeant- at-arms areappointed by the Crown. The business of the House is, as wehave seen (sec. 871) , quite absolutely under the direction of itsgreat committee, the Cabinet. Certain days of the week are setapart by the rules for the consideration of measures introducedby private members, but most of the time of the House is devotedto ' government bills . ' The majority put themselves in the handsof their party leaders, the ministers, and the great contests ofthe session are between the minority on one side of the chamberand the ministerial party, or majority on the other side.910. Down the centre of the hall in which the House sits runs a verybroad aisle. The Speaker's seat stands, upon an elevated place, at the farther end of this aisle, and below it are the seats and tables of the clerks anda great table stretching some distance down the aisle, for the reception ofthe Sergeant's mace and various books, petition boxes, and papers . Thebenches on either side of the aisle face each other. Those which rise, intiers, to the Speaker's right are occupied by the majority, the Cabinetministers, their leaders, sitting on the front bench by the great table.THE GOVERNMENT OF GREAT BRITAIN. 395Treasury Bench, ' This front bench is accordingly called the -- theTreasury being the leading Cabinet office. On the benches which riseto the Speaker's left sit the minority, their leaders also ( the ' leaders ofthe Opposition, ' the minority being expected, generally with reason,to be opposed to all ministerial proposals) on the front bench by thetable, and so directly facing the ministers, only the table intervening.-911. II. The House of Lords: its Composition. The Houseof Lords consisted during the session of 1896 of four hundredand ninety- six English hereditary peers (Dukes, Marquises,Earls, Viscounts, Barons); the two archbishops and twenty-fourbishops, holding their seats by virtue of their offices; sixteen.Scottish representative peers, elected by the whole body of Scottishpeers to sit for the term of Parliament; twenty-eight Irish peers,elected by the peers of Ireland to sit for life; and four judicialmembers known as Lords of Appeal in Ordinary (secs. 915, 923,924), sitting as life-peers only, by virtue of their office.912. There is no necessary limitation to the number of hereditaryEnglish peers. Peers can be created at will by the Crown (that is, bythe ministry ) , and their creation is in fact frequent. Two-thirds of thepresent number of peers hold peerages created in the present century.Thirteen were created in the year 1886. The number of Scottish and Irishpeers is limited by statute.913. The House of Lords is summoned to its sessions when the Houseof Commons is, and the two must always be summoned together.-914. Function of the House of Lords in Legislation. TheHouse of Lords is, in legal theory, coequal in all respects withthe House of Commons; but, in fact, its authority is, as I havealready more than once said (secs. 859, 868, 890) , politically veryinferior. Its consent is, in law, as necessary as that of the Houseof Commons to every act of legislation; but it does not oftenwithhold that consent when the House of Commons speaksemphatically and with the apparent concurrence of the nationon any matter: it then regards it as a matter of imperativepolicy to acquiesce. Its legislative function has been wellsummed up as a function of cautious revision . It can wiselyand safely stand fast against the Commons only when there issome doubt as to the will of the people. Its acquiescence, however, is based usually upon just views of policy rather than upon396 THE GOVERNMENT OF GREAT BRITAIN.mere timidity, and its part in the quieter sorts of law-making isstill very influential .915. The House of Lords as a Supreme Court. The House ofLords is still, however, in fact as well as in form, the supremecourt of appeal in England, though it has long since ceased toexercise its judicial functions (inherited from the Great Councilof Norman times) as a body. Those functions are now alwaysexercised by the Lord Chancellor, who is ex officio president ofthe House of Lords, and four Lords of Appeal in Ordinary, whoare learned judges appointed as life peers, specially to performthis duty. These special Law Lords ' are assisted from time totime by other lords who have served as judges of the highercourts or who are specially learned in the law.916. Legislation, therefore, is controlled by the House of Commons, the interpretation of the law by the judicial members ofthe House of Lords. The House of Lords shares with the popular chamber the right of law-making, but cannot assert that rightin the face of a pronounced public opinion. The Sovereign, inlike manner, has theoretically the right to negative legislation;but the Sovereign is in the hands of the ministers, and the ministers are in the hands of the Commons; and legislation is nevernegatived.917. The Constitution of England consists of law and precedent.She has great documents like Magna Charta at the foundation ofher institutions; but Magna Charta was only a royal ordinance.She has great laws like the Bill of Rights at the centre of herpolitical 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 Parliament dare not go fasterthan public opinion: and public opinion in England is steadilyand powerfully conservative.918. That is a very impressive tribute which Sir Erskine May pays tothe conservatism of a people living under such a form of governmentwhen he says, " Not a measure has been forced upon Parliament whichthe calm judgment of a later time has not since approved; not an agitation has failed which posterity has not condemned. " 11 Constitutional History, Vol. II. , p. 243 ( Am. ed. , 1863) .THE GOVERNMENT OF GREAT BRITAIN. 397919. The Courts of Law. The administration of justice hasalways been greatly centralized in England. From a very earlyday judges of the king's court have gone on circuit,' holdingtheir assizes (sittings) in various parts of the country, in orderto save suitors the vexation and expense of haling their adversaries always before the courts in London. But these circuitjudges travelled from place to place under special commissionsfrom the central authorities of the state, and had no permanentconnections 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 ofKing's Bench, the Court of Common Pleas, and the Court ofExchequer) 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 centralizationwas a greater uniformity of organization and a less haphazarddistribution of jurisdiction among the various courts. This lackwas supplied by a great Judicature Act passed in 1873. By thatAct (which went into force on the 1st November, 1875) , andsubsequent additional legislation extending to 1879, the courtsof law, which had grown, as we have seen (sec. 847) , out of thatonce single body, the ancient Permanent Council of the Normanand Plantagenet kings, were at last reintegrated, made up together into a coördinated whole.--- 920. Judicial Reform: the Reorganization of 1873-1879. Thesemeasures of reorganization and unification had been preceded, in1846, by a certain degree of decentralization. Certain so- calledCounty Courts were then created, which are local, not peripateticWestminster, tribunals, and which have to a considerable extentabsorbed the assize business, though their function, theoretically,is only to assist, not to supplant, the assizes. Now, therefore, thegeneral outlines of the judicial system are these. The generalcourts of the kingdom are combined under the name, SupremeCourt of Judicature. This court is divided into two parts, whichare really two quite distinct courts: namely, the High Court ofJustice and the Court of Appeal; while over both, as the court of398 THE GOVERNMENT OF GREAT BRITAIN.last resort, still stands the House of Lords. The High Courtof Justice acts in three divisions, a Chancery Division, a Queen'sBench Division, and a Probate, Divorce, and Admiralty Division;and these three divisions constitute the ordinary courts of law,inheriting the jurisdictions suggested by their names. Fromthem an appeal lies to the Court of Appeal; from the Court ofAppeal to the House of Lords. The County Courts stand related to the system as the Assizes do.921. The Chancery Division has five judges besides its president,the Chancellor; the Queen's Bench Division has fifteen judges, of whom*one, the Lord Chief Justice, is its president; the Probate, Divorce, andAdmiralty Division has but two judges, of whom one presides over theother. " This arrangement into divisions is a mere matter of convenience;no very strict distinctions as to jurisdiction are preserved; and any changesthat the judges think desirable may be made by an Order in Council.Thus an Exchequer Division and a Common Pleas division , which at firstexisted , in preservation of the old lines of organization , were abolished bysuch an Order in December, 1880. The judges assigned to the variousDivisions do not necessarily or often sit together. Cases are generallyheard before only one judge; so that the High Court may be said to havethe effective capacity of twenty-three courts, its total number of judgesbeing twenty-three. Only when hearing appeals from inferior tribunals,or discharging some other function different from the ordinary trial of cases,must two or more judges sit together.922. The Court of Appeals may hear appeals on questions both oflaw and of fact. It consists of the Master of the Rolls and five LordsJustices, who may be said to constitute its permanent and separate bench,and of the presidents of the three Divisions of the High Court, who maybe called its occasional members. Three judges are necessary to exerciseits powers, and, in practice, its six permanent members divide the work,holding the court in two independent sections.

923. The House of Lords may sit, when acting as a court, whenParliament is not in session, after a prorogation , that is, or even after adissolution for the House of Lords when sitting as a court is like its legislative self only in its modes of procedure. In all other respects it is totallyunlike the body which obeys the House of Commons in law-making. Itis constituted always, as a court, of the Lord Chancellor and at least twoof the Lords of Appeal in Ordinary of whom I have spoken (sec . 911 );only sometimes are there added to these a third Lord of Appeal in Ordinary, an ex-Lord Chancellor, or one or more of such judges or ex-judges¹ F. W. Maitland, Justice and Police (English Citizen Series) , pp. 43, 44.THE GOVERNMENT OF GREAT BRITAIN. 399of the higher courts as may have found their way to peerages. Othermembers of the House never attend; or, attending, never vote.924. A Judicial Committee of the Privy Council, of which also theLord Chancellor is a member, and which now consists mainly of the sameLords of Appeal in Ordinary who act in judicial matters as the House ofLords, constitutes a court of last resort for India, the Colonies, the ChannelIslands, and the Isle of Man, as well as, within certain limits, as a courtof appeal from the Probate, Divorce, and Admiralty Division of the HighCourt of Justice.925. The Lord Chancellor is the most notable officer in the wholesystem. He is president of the House of Lords, of the Court of Appeal,of the High Court of Justice, and of the Chancery Division of the HighCourt, 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 theHouse of Lords and the Privy Council always, in the Court of Appealoften. More singular still , he is the political officer of the law he is amember always of the Cabinet, and, like the other members , belongs to aparty, and goes in or out of office according to the favor of the House ofCommons, exercising while in office, in some sense, the functions of aMinister of Civil Justice.1926. Civil Cases are heard either by judges of the High Courtin London, by judges of that court sitting on circuit in thevarious ' assize towns ' of the county, of which there is alwaysat least one for each county, or by the County Courts createdin 1846, which differ from the old county courts, long sincedecayed and now deprived of all judicial functions, both in theirorganization and in their duties. They consist, not of the sheriffand all the freemen of the shire, but of single judges, holdingtheir offices during good behavior, assisted by permanent ministerial officers, and exercising their jurisdiction not over countiesbut in districts much smaller than the counties. They are calledcounty courts only by way of preserving an ancient and respectedname.-927. The County Courts have jurisdiction in all cases of debt ordamage where the sum claimed does not exceed £50, and in certain equitycases where not more than £500 is involved , except that cases of slander,libel, seduction , and breach of promise to marry, as well as all matrimonialcases, are withheld from them. At least, such is their jurisdiction in roughoutline. A full account would involve many details; for it has been thetendency of all recent judicial legislation in England to give more and more1 Maitland, p. 68.400 THE GOVERNMENT OF GREAT BRITAIN.business, even of the more important kind, to these Courts. Their normalimportance may be judged from the fact, stated by Mr. Maitland, that" most of the contentious litigation in England is about smaller sumsthan £50.928. A judge of the High Court may send down to a county court, uponthe application of either party, cases of contract in which the sum claimeddoes not exceed £ 100. Any case, however small the pecuniary claim involved, may be removed from the county to the High Court if the judge ofthe county court will certify that important principles of law are likely toarise in it , or if the High Court or any judge thereof deems it desirablethat it should be removed. Appeals from a county court to the High Court are forbidden in most cases in which less than £20 is involved.929. The county court system rests upon the basis of a division of thecountry into fifty-six circuits. All but one or two of these include several ' districts ' - the districts numbering about 500. Each district has its ownseparate court, with its own offices, registrar, etc.; but the judges are appointed for the circuits , —one for each circuit . They are appointed by the Lord Chancellor from barristers of seven years' standing.¹930. Juries are falling more and more into disuse in England in civilcases. In all the more important causes, outside the Chancery Division,whose rule of action, like that of the old Chancery Court, is no jury, ' ajury may be impanelled at the desire of either party; but many litigantsnow prefer to do without, especially in the County Courts, where boththe facts and the law are in a large majority of the cases passed upon bythe judge alone, without the assistance of the jury of five which mightin these courts be summoned in all cases of above £20 value.―931. Criminal Cases are tried either before the county Justicesof the Peace, who are unpaid officers appointed by the Chancellorupon the recommendation of the Lords Lieutenant of the Counties; before borough Justices, who are paid judges much likeall others; or before judges of the High Court on circuit. Thejurisdiction of the Justices may be said to include all but thegravest offences, all but those, namely, which are punishable bydeath or by penal servitude, and except, also, perjury, forgery,bribery, and libel. There are many Justices for each county,there being no legal limit to their number; and they exercise.their more important functions at general Quarter Sessions, atgeneral sessions, that is, held four times yearly. The criminalassizes of the High Court also are held four times a year. All1 The various Acts affecting the County Courts were amended and consolidated by the County Courts Act, 1888.THE GOVERNMENT OF GREAT BRITAIN. 401criminal cases, except those of the pettiest character, such aspolice cases, are tried before juries.932. " About one-half of the criminal trials, " it is stated , ¹1 take placeat county sessions, about one-fourth at borough sessions, the rest at Assizesor the Central Criminal Court, " the great criminal court of London.933. Quarter and Petty Sessions. For the exercise of all theirmore important judicial functions the Justices meet quarterly, in QuarterSessions; but for minor duties in which it is not necessary for more thantwo Justices to join, there are numerous Petty Sessions held at variouspoints in the counties. Each county is divided by its Quarter Sessionsinto petty sessional districts, and every neighborhood is given thus its owncourt of Petty Sessions, - from which in almost all cases an appeal lies toQuarter Sessions. Thus the important function of licensing (sec . 966) isexercised by Petty Sessions, subject to appeal to the whole bench ofJustices.934. The Justices of the Peace were, as we shall see more particularly in another connection (secs. 946-950) , the general governmental authorities of the counties until the reform of local government effectedin 1888, exercising functions of the most various, multifarious, and influential sort. They are generally country gentlemen of high standing intheir counties, and serve, as already stated, without pay. They areappointed, 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 development.Considering the somewhat autocratic nature of the office of Justice , ithas been, on the whole, exercised with great wisdom and public spirit,and during most periods with extraordinary moderation, industry, andeffectiveness .-935. The duties which Americans associate with the office of Justice ofthe Peace are exercised in England, not by the bench of Justices sitting inQuarter Sessions, -they then constitute, as we have seen, a criminal courtof very extensive jurisdiction , —- but by the Justices singly, sitting eitherformally or informally. A single Justice may conduct the preliminaryexamination of a person charged with crime, and may commit for trial ifreasonable ground of suspicion be proved. A single Justice can also issuesearch warrants to the constabulary for the detection of crime, etc.936. Police . The police force, or, in more English phrase,the constabulary, of the kingdom is overseen from London by theHome Office, which makes all general rules as to discipline, pay,etc., appoints royal inspectors, and determines, under the Treasury, the amount of state aid to be given to the support of the1 Maitland, p. 86.402 THE GOVERNMENT OF GREAT BRITAIN.forces; but all the actual administration of the system is undertaken by the local authorities. In the Counties a joint Committee of Quarter Sessions and the County Council appoint theChief Constable, who appoints and governs the force with powersof summary dismissal and punishment, but who acts in all thingssubject to the governing control of the Committee (sec. 974) . Inthose towns which undertake to maintain a force distinct fromthat of the County the Head Constable is chosen by the townauthorities and the direction of the force is superintended by a'Watch Committee ' of the Town Council. London, which employs, it is stated, one- third of the entire police force of thekingdom, 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 andserve directly under his authority.937. The police throughout the country are given something like military drill and training, the organization being made as perfect, the trainingas thorough, and the discipline as effective as possible. Ex-army officersare preferred for the office of Chief Constable.111012 .II. LOCAL GOVERNMENT.-938. Complex Character of Local Government in England.The subject of local government in England is one of extremecomplexity and, therefore, for my present purpose of brief description, one of extreme difficulty. So perfectly unsystematic,indeed, are the provisions of English law in this field that mostof the writers who have undertaken to expound them, even toEnglish readers, have seemed to derive a certain zest from thedespairful nature of their task, a sort of forlorn -hope enthusiasm. The institutions of local government in England havegrown piece by piece as other English institutions have, and notaccording to any complete or logical plan of statutory construction. They are patch- work, not symmetrical net-work, and thepatches are of all sizes, shapes, and materials.939. " For almost every new administrative function , " complains onewriter on the subject, " the Legislature has provided a new area containing a new constituency, who by a new method of election choose candi-THE GOVERNMENT OF GREAT BRITAIN. 403dates who satisfy a new qualification , to sit upon a new board, during anew term , to levy a new rate [ tax ] , and to spend a good deal of the newrevenues in paying new officers and erecting new buildings. " 1940. It has been the habit of English legislators, instead ofperfecting, enlarging, or adapting old machinery, to create allsorts of new pieces of machinery with little or no regard to theirfitness to be combined with the old or with each other. TheLocal Government Act of 1888 represents the first deliberate attempt at systematization; but even that Act did not effect system,and itself introduced additional elements of confusion by firstadopting another Act (the Municipal Corporations Act of 1882)as its basis and then excepting particular provisions of that Actand itself substituting others in respect, not of all, but of someof the local administrative bodies meant to be governed by it.The supplementary legislation of 1894 introduced some furtherelements of consistent system; but did not after all very much.simplify existing methods. It would seem as logical a plan ofdescription as any, therefore, to discuss the older divisions andinstrumentalities first and then treat afterwards of more recentlegislative creations as of modifications, of however haphazard akind, of these.941. General Characterization.-In general terms, then, itmay be said, that throughout almost the whole of English history,only the very earliest periods excepted, counties and towns havebeen the principal units of local government; that the parishesinto which the counties have been time out of mind divided,though at one time of very great importance as administrativecentres, were in course of time in great part swallowed up byfeudal jurisdictions, and now retain only a certain minor part inthe function, once exclusively their own, of caring for the poor;and that this ancient framework of counties, towns, and parisheshas, of late years, been extensively overlaid and in large partobscured: (a) bythe combination (1834) of parishes into ' Unions 'made up quite irrespective of county boundaries and charged notonly with the immemorial parish duty of maintaining the poor butoften with sanitary regulation also and school superintendence,1 Local Administration ( Imperial Parliament Series) , by Wm. Rathbone,Albert Pell, and F. C. Montague, p. 14,404 THE GOVERNMENT OF GREAT BRITAIN.and generally with a miscellany of other functions; (b) by thecreation of new districts for the care of highways; (e) by newvarieties of town and semi- town government; and (d) by the subdivision of the counties (1889) into new administrative ' districts, 'charged with general administrative functions. The only distinction persistent enough to serve as a basis for any classification of the areas and functions of the local administration thusconstructed is the distinction between Rural Administration andUrban Administration, a distinction now in part destroyed bythe Act of 1888; and of these two divisions of administrationalmost the only general remark which it seems safe to ventureis, that Rural Administration has hitherto rested much morebroadly than does Urban on old historical foundations.942. 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 government inEngland; and the Counties are in a sense older than the kingdomitself. Many of them, as we have seen (sec. 836), represent intheir areas, though of course no longer in the nature of theirgovernment, separate Saxon kingdoms of the Heptarchy times.When they were united under a single throne they retained (itwould appear) their one- time king and his descendants in theelder male line as their coldormen . They retained also their oldgeneral council, in which eoldorman and bishop presided, thoughthere was added presently to these presidents of the older orderof things another official, of the new order, the king's officer, theSheriff. To this council went up, as was of old the wont, thepriest, the reeve, and four select men from every township,together with the customary delegates from the ' hundreds. '943. Of course the Counties no longer retain these antiqueforms of government; scarcely a vestige of them now remains.But the old forms gave way to the forms of the present by nosudden or violent changes, and some of the organs of county government now in existence could adduce plausible proof of theirdescent from the manly, vigorous, self- centred Saxon institutionsof the ancient time.- -944. Early Evolution of the County Organs. In Normantimes the coldorman's office languished in the shadow of the Sher-THE GOVERNMENT OF GREAT BRITAIN. 405iff's great authority. The spiritual and temporal courts wereseparated, too, and the bishop withdrew in large measure fromofficial participation in local political functions . The CountyCourt became practically the Sheriff's Court; its suitors the freeholders. Its functions were, however, still considerable: it chosethe officers who assessed the taxes; it was the medium of theSheriff's military administration; and it was still the principalsource of justice. But its duties were not slow to decay. As aCourt 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 andmore exclusively the personal functions of the Sheriffs, who werecommonly great barons, who managed in some instances for alittle while to make their office hereditary, and who contrivedoftentimes to line their own pockets with the proceeds of thetaxes: for great barons who were sheriffs were sometimes alsoofficials of the Exchequer, and as such audited their own accounts .The local courts at last became merely the instruments of theSheriffs and of the royal judges.More .945. Decline of the Sheriff's Powers. - It was the overbearing.power of the Sheriffs, thus developed, that led to the greatchanges which were to produce the county government of our ownday. The interests alike of the Court and of the people becameenlisted against them. The first step towards displacing themwas taken when the royal justices were sent on circuit. Next,in 1170, under Henry II.'s capable direction, the great baronialsheriffs were tried for malfeasance in office, and, though influential enough to escape formal conviction, were not influentialenough to retain their offices . They were dismissed, and replaced by Exchequer officials directly dependent upon the Crown.In 1194, in the next reign, it was arranged that certain ' custodians of pleas of the Crown ' should be elected in the counties, tothe further ousting of the Sheriffs from their old- time judicialprerogatives. Then came Magna Charta (1215) and forbade allparticipation by Sheriffs in the administration of the king's justice. Finally the tenure of the office of Sheriff, which was by thattime little more than the chief place in the militia of the countyand the chief ministerial office in connection with the administra-406 THE GOVERNMENT OF GREAT BRITAIN.tion of justice, was limited to one year. The pulling down ofthe old system was complete; fresh construction had already become necessary.946. Justices of the Peace. The reconstruction was effectedthrough the appointment of ' Justices of the Peace. ' The expedient of ' custodians of pleas of the Crown ' (custodes placitorumcorona) elected in County Court, as substitutes for the Sheriff inthe exercise of sundry important functions of local justice, hadproved unsatisfactory. They, too, like the Sheriffs, were curtlyforbidden by Magna Charta to hold any pleas of the Crown; andthey speedily became only the coroners we know ( ' crowners 'Shakspere's grave-digger in Hamlet very appropriately callsthem) , whose chief function it is to conduct the preliminary investigation concerning every case of sudden death from an un- known cause. Better success attended the experiment of Justicesof the Peace. At first ' Conservators ' of the peace merely, theseofficers became, by a statute passed in 1360, in the reign of Edward III. , justices also, intrusted with a certain jurisdiction overcriminal cases, to the supplanting of the Sheriff in the last of hisjudicial functions, his right, namely, to pass judgment in histourn or petty court on police cases, to apply the discipline ofenforced order to small offences against the public peace.______947. Henceforth, as it turned out, the process of providingways of local government was simple enough, as legislators choseto conduct it. It consisted simply in charging the Justices ofthe Peace with the doing of everything that was necessary to bedone. Slowly, piece by piece, their duties and prerogatives wereadded to, till the Justices had become immeasurably the mostimportant functionaries of local government, combining in theircomprehensive official characters almost every judicial and administrative power not exercised from London. Not till thepassage of the Local Government Act of 1888 were they relegatedto their older and more characteristic judicial functions, and theiradministrative and financial powers transferred to another body,the newly created County Council.948. Functions of Justices of the Peace prior to Recent Reforms.The Justice of the Peace has been very happily described as havingbeen under the old system " the state's man of all work. " His multifari--THE GOVERNMENT OF GREAT BRITAIN. 407ous duties brought him into the service ( a ) of the Privy Council, underwhose Veterinary Department he participated in the administration ofthe Acts relating to contagious cattle diseases; ( b ) of the Home Office,under which he acted in governing the county constabulary, in conducting the administration of lunatic asylums, and in visiting prisons; (c ) ofthe Board of Trade, under whose general supervision he provided andtested weights and measures, constructed and repaired bridges, and oversaw highway authorities; and ( d) of the Local Government Board, underwhose superintendence he appointed parish overseers of the poor, exercised, on appeal, a revisory power over the poor-rates, and took a certainpart in sanitary regulation. The Justices, besides, formerly levied thecounty tax, or ' rate, ' out of which the expenses of county business weredefrayed; issued licenses for the sale of intoxicating drinks ( as they stilldo) , for the storage of gunpowder and petroleum, and for other undertakings required by law to be licensed; divided the counties into highway,polling, and coroner's districts; issued orders for the removal of paupersto their legal places of settlement; fulfilled a thousand and one administrative functions too various to classify, too subordinate to need enumeration, now that most of them have been transferred to the Councils. Thetrial of criminal cases, together with the performance of the various functions attendant upon such a jurisdiction, always constituted , of course ,one of the weightiest duties of their office, and is now its chief and almostonly duty.--1949. " Long ago, " laughs Mr. Maitland, speaking before the passageof the Act of 1888, "long ago lawyers abandoned all hope of describingthe ' duties of a justice in any methodic fashion , and the alphabet hasbecome the only possible connecting thread. A Justice must have something to do with Railroads, Rape, Rates, Recognizances, Records, andRecreation Grounds '; with ' Perjury, Petroleum, Piracy, and Playhouses '; with Disorderly Houses, Dissenters , Dogs, and Drainage . '950. Character and Repute of the Office of Justice. - The officeof Justice of the Peace is representative in the same sense, not an unimportant sense, in which the unreformed parliaments of the early partof the century were representative at any rate of the county populations.The Justices are appointed from among the more considerable gentry ofthe counties, and represent in a very substantial way the permanentinterests of the predominantly rural communities over whose justice theypreside. An interesting proof of their virtually representative characterappears in the popularity of their office during the greater part of itshistory. Amidst all the extensions of the franchise, all the remaking ofrepresentative institutions which this century has witnessed in England,the Justiceship of the Peace remained all the while practically untouched,because on all hands greatly respected, until the evident need to introduce1 Justice and Police, p. 84.408 THE GOVERNMENT OF GREAT BRITAIN.system into local government, and the apparent desirability of systematizing it in accordance with the whole policy of recent reforms in Englandby extending the principle of popular representation by election to countygovernment, as it had been already extended to administration in thelesser areas, led to the substitution of County Councils for the Justicesas the county authority in financial and administrative affairs.951. The Lord Lieutenant . In the reign of Mary a ' LordLieutenant' took the place of the Sheriff in the County as headof the militia, becoming the chief representative of the Crown inthe County, and subsequently the keeper of the county records.(Custos Rotulorum) . The Sheriff, since the completion of thischange, has been a merely administrative officer, executing thejudgments of the courts, and presiding over parliamentary elections. The command of the militia remained with the LordsLieutenant until 1871, when it was vested in the Crown,that is assumed by the central administration. (Compare secs.931-935. )952. The Reform of 1888. — The reform of local administrationproposed by the ministry of Lord Salisbury, in the spring of 1888,although not venturing so far as it would be necessary to go tointroduce order and symmetry into a patch- work system, suggested some decided steps in the direction of simplification andcoördination. The confusions of the existing arrangements weremany and most serious . England was divided into counties,boroughs, urban sanitary districts, rural sanitary districts, poorlaw parishes, poor- law unions, highway parishes, and school districts; and these areas had been superimposed upon one anotherwith an astonishing disregard of consistent system, withouteither geographical or administrative coördination. The confusions to be remedied, therefore, consisted (a) of the overlappingof the various areas of local government, the smaller areas notbeing in all cases subdivisions of the larger, but defined almostwholly without regard to the boundaries of any other areas; (b)of a consequent lack of coördination and subordination amonglocal authorities, fruitful of the waste of money and the loss ofefficiency always resulting from confusions and duplications oforganization; (c) of varieties of time, method, and franchise inthe choice of local officials; and (d) of an infinite complexity――THE GOVERNMENT OF GREAT BRITAIN. 409in the arrangements regarding local taxation, the sums neededfor the various purposes of local government (for the poor, forexample, for the repair of highways, for county outlays, etc. )being separately assessed and separately collected, at great expense and at the cost of a great deal of vexation to the taxpayer.953. The ministry at first proposed to remedy this confusion,at least in part, by largely centering administration, outside thegreater towns, in two areas, the County and the District. Thesystem of poor- relief, through parishes and unions, was to be leftuntouched, but a beginning was to be made in unification bymaking the Counties and Districts the controlling organs of localgovernment; provision was to be made for extensive readjustments of boundaries so that the smaller rural areas might bebrought into proper relation and subordination to the larger bymaking them in all cases at least subdivisions of counties; bothCounty and District were to have representative councils presumably fitted ultimately to assume the whole taxing function;and the franchise by which these bodies were to be elected wasto be assimilated to the simplest and broadest used in local andparliamentary elections.954. Only a portion of this reform, however, it turned out,could be got through Parliament. The provisions relating to theformation of Districts were left out, and only the county wasreorganized. The larger boroughs were given county privileges;the smaller were brought into new and closer relations with thereconstructed county governments. London, too, was given acounty organization. The integration of the smaller areas ofrural administration with the new county system was not accomplished till 1894.--- 955. Administrative Counties and County Boroughs . The Act,as passed, coördinated Counties with what were thenceforth tobe called ' county boroughs. ' Every borough of not less thanfifty thousand inhabitants at the time the Act was passed, orwhichwas, before the passage of the Act, treated as a county (in all,sixty-one boroughs) , was constituted a ' county borough, ' and wasformally put alongside the county in rank and privileges. Thisdid not mean that these boroughs were to be given a county or-410 THE GOVERNMENT OF GREAT BRITAIN.ganization. Paradoxically enough, it meant just the opposite,that the counties were to be given an organization closely resembling that already possessed by the boroughs. The nomenclature of the Act would be more correct, though possibly lessconvenient, had it called the counties ' borough counties ' insteadof calling some of the boroughs ' county boroughs . ' The measurehas been very appropriately described as an Act to apply theMunicipal Corporations Act of 1882, whose main provisions dateback as far as 1835 ( sec. 989) , to county government, with certain relatively unimportant modifications.956. The counties designated by the Act are dubbed ' administrative counties, ' because they are not in all cases the historical counties ofthe map. In several instances counties are separated into parts for thepurposes of the reorganization. Thus the East Riding of Yorkshire constitutes one administrative county, ' the North Riding another, and theWest Riding a third; Suffolk and Sussex also have each an East and Westdivision; Lincoln falls apart into three administrative counties, etc. Allboroughs of less than 50,000 inhabitants not treated as counties are moreor less incorporated with the counties in which they lie . (See 997. )―957. The County Councils: their Constitution. In pursuanceof the purpose of assimilating county to borough organization,the counties are given representative governing assemblies composed of councillors and aldermen, presided over by a chairmanwhose position and functions reproduce those of the boroughmayors, and possessing as their outfit of powers almost all themiscellany of administrative functions hitherto belonging to theJustices of the Peace. There is not, it should be observed, aCouncil and a Board of Aldermen, as in American cities, but asingle body known as the Council and composed of two classes ofmembers, the one class known as Aldermen, the other as Councillors . These two classes differ from each other, not in poweror in function, but only in number, term, and mode of election .The Councillors are directly elected by the qualified voters of theCounty and hold office for a term of three years; the Aldermenare one-third as many as the Councillors in number, are electedby the Councillors, either from their own number or from thequalified voters outside, and hold office for six years, one-half oftheir number, however, retiring every three years, in rotation.THE GOVERNMENT OF GREAT BRITAIN. 411This single-chambered Council of Aldermen and Councillors electsits own chairman, to serve for one year, and pays him such compensation as it deems sufficient. During his year of service thechairman exercises the usual presidential, but no independentexecutive, powers, and is authorized to act as a Justice of thePeace, along with the rest of the ' Commission' of the County.958. Any one may be elected a councillor who is a qualified voter inthe county, or who is entitled to vote in parliamentary elections by virtueof ownership of property in the county; and in the counties, though notin the boroughs, from whose constitution this of the counties is copied,peers owning property in the county and " clerks in holy orders andother ministers of religion " may be chosen to the Council.959. The number of councillors, and consequently also the numberof aldermen, in each County Council ( for the latter number is always onethird of the former) was fixed in the first instance by an order of the LocalGovernment Board, and is in some cases very large. Thus Lancashirehas a Council (aldermen, of course, included) of 140 members, the WestRiding of Yorkshire a council of 120 , Devon a council of 104. Rutland,whose Council is the smallest , has 28. The average is probably about 75 .960. For the election of councillors the county, including such boroughs as are not county boroughs, ' is divided into electoral districts,corresponding in number to the number of councillors, one councillorbeing chosen from each district. The number of these districts havingbeen determined by the order of the Local Government Board, their areaand 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 division of representation between rural and urban populations.961. The number of councillors and the boundaries of electoral districtsmay be changed by order of the Local Government Board upon the recommendation of the Council of a borough or county.Ded 962. The County Franchise. The councillors are elected, tospeak inthe most general terms, by the resident ratepayers of thecounty. Every person, that is to say, not an alien or otherwisespecially disqualified , who is actually resident within the countyor within seven miles of it, paying rates in the county and occupying, within the county, either jointly or alone, any house, warehouse, counting-house, shop, or other building for which he pays.rates is entitled to be enrolled (if his residence has been of twelvemonths' standing) and to vote as a county elector.412 THE GOVERNMENT OF GREAT BRITAIN.963. A person who occupies land in the county of the annual value of£10 and who resides in the county, or within seven miles of it , may votein the elections for county councillors though his residence has been ofonly six months' standing. Single women who have the necessary qualifications as taxpayers and residents are entitled to vote as county electors.964. Powers of the County Councils. The Council of eachCounty is a body corporate and as such may have a common seal,hold property, make by-laws, etc. Its by-laws, however, unlessthey concern nuisances, are subject to approval by the Secretaryof State [ the Home Secretary ], and may be annulled by an orderin Council.(1) The Council holds and administers all county property, andmay purchase or lease lands or buildings for county uses;(2) With it rests the duty of maintaining, managing, and, whennecessary, enlarging, the pauper lunatic asylums of the county,and of establishing and maintaining, or contributing to, reformatory and industrial schools;(3) It is charged with maintaining county bridges, and all mainroads in every part not specially reserved by urban authorities fortheir own management because lying within their own limits;and it may declare any road a main road which seems to serve assuch, and which has been put in thorough repair, before beingaccepted by the county, by the local highway authorities;(4) It administers the statutes affecting the contagious diseasesof animals, destructive insects, fish preservation, weights andmeasures, etc.;-(5) It appoints, pays, and may remove the county Treasurer,the county coroner, the public surveyor, the county analyst, andall other officers paid out of the county rates, except the clerkof the Peace and the clerks of the Justices, including the medical health officers, though these latter functionaries report, not tothe Council (the Council receives only a copy of their report), butto the Local Government Board, and the only power of the Councilin the premises is to address to the Board, independently and oftheir own motion, representations as to the enforcement of thePublic Health Acts where such representations seem necessary;(6) It determines the fees of the coroner and controls thedivision of the county into coroners' districts;THE GOVERNMENT OF GREAT BRITAIN. 413(7) It divides the county into polling districts also for parliamentary elections, appoints voting places, and supervises theregistration of voters;(8) It sees to the registering of places of worship, of the rulesof scientific societies, of charitable gifts , etc.965. It is obviously impossible to classify or make any generalizedstatement of this miscellany of powers: they must be enumerated or notstated at all. They are for the most part, though not altogether, theadministrative powers formerly intrusted to the Justices of the Peace.966. The Licensing Function, being semi-judicial, is left in mostcases with the Justices of the Peace; but the County Council isassigned the granting of licenses to music and dancing halls, tohouses which are to be devoted to the public performance of stageplays, and for the keeping of explosives.967. Oddly enough, the County Council is, by another section of theAct of 1888, authorized to delegate its powers of licensing in the case ofplayhouses and in the case of explosives back to the Justices again, actingin petty sessions. The same section also permits a similar delegation to theJustices of the powers exercised by the Council under the Act touchingcontagious cattle diseases.968. The Financial Powers of the Council are extensive andimportant. The Council takes the place of the Justices in determining, assessing, and levying the county, police, and hundredrates, in disbursing the funds so raised, and in preparing or revising the basis or standard for the county rates; though in this lastmatter it acts subject to appeal to Quarter Sessions. It mayborrow money, " on the security of the county fund," for thepurpose of consolidating the county debt, purchasing property forthe county, or undertaking permanent public works, provided itfirst obtain the consent of the Local Government Board to theraising of the loan. That Board gives or withholds its consentonly after a local inquiry, and, in case it assents, fixes the periodwithin which the loan must be repaid, being itself limited in thislast particular by a provision of law that the period must neverexceed thirty years.969. If the debt of the county already exceed ten per cent. of theannual ratable value of the ratable property of the county, or if the proposed loan would raise it above that amount, a loan can be sanctioned414 THE GOVERNMENT OF GREAT BRITAIN.only by a provisional order of the Board, an order, that is, whichbecomes 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 Government Board be obtained.970. Additional Powers.- The Act of 1888 provides that any otherpowers which have been conferred upon the authorities of particular localities by special Act, and which are similar in character to those alreadyvested in the County Councils, may be transferred to the proper CountyCouncils by provisional order of the Local Government Board; and alsothat a similar provisional order of that Board may confer upon a CountyCouncil any powers, arising within the County, which are now exercisedby the Privy Council, a Secretary of State, the Board of Trade, the LocalGovernment Board itself, or any other government department, providedthey be powers conferred by statute and the consent of the departmentconcerned be first secured.971. 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 basisof this, the Council makes estimate of the sums to be needed,and fixes the rates accordingly. The Council's estimate is madefor two six-month periods, and is subject to revision for thesecond six-month period, provided the experience of the firstprove it necessary either to increase or decrease the amounts tobe raised.972. Returns of the actual receipts and expenditures of eachfinancial year are also made to the Local Government Board, insuch form and with such particulars as the Board directs; andfull abstracts of these returns are annually laid before bothHouses of Parliament. The county accounts are, moreover,periodically audited by district auditors appointed by the LocalGovernment Board. The accounts of the county Treasurer areaudited by the Council.973. Local rates are assessed exclusively upon real estate, and,until the passage of the Local Government Act of 1888, it wasthe habit of Parliament to make annual ' grants in aid of therates ' from the national purse, with the idea of paying out ofmoneys raised largely upon personal property some part of theexpense of local administration. The Act of 1888 substitutesanother arrangement. It provides that all moneys collected fromTHE GOVERNMENT OF GREAT BRITAIN. 415certain licenses (a long list of them, from liquor licenses to licensesfor male servants and guns) , together with four-fifths of one- halfof the proceeds of the probate duty, shall be distributed amongthe counties from the imperial treasury, under the direction ofthe Local Government Board, for the purpose of defraying certain specified county expenses, notably for the education of paupers and the support of pauper lunatics.974. The Police Powers, long exercised by the Justices of thePeace, are now exercised by a joint committee of Quarter Sessions and the County Council. This committee is made up, inequal parts, of Justices and members of the Council; elects itsown chairman, if necessary (because of a tie vote) by lot; andacts, when appointed, not as exercising delegated authority, butas an independent body. The term of the committeemen is, however, determined by the bodies which choose them.975. The Parish. Parishes there have been in England eversince the Christian church was established there; but the Parishwhich now figures in English local government inherits nothingbut its name intact from those first years of the national history.The church, in its first work of organization, used the smallestunits of the state for the smallest divisions of its own system:it made the township its parish; and presently the priest wasalways to be seen going up with the reeve and the four men of thetownship to the hundred and the county courts. Only where thepopulation was most numerous did it prove necessary to makethe parish smaller than the township; only where it was leastnumerous did it seem expedient to make the parish larger thanthe township. Generally the two were geographically coincident.During much the greater part of English history, too, citizenshipand church membership were inseparable in fact, as they still arein legal theory. The vestry, therefore, which was the assemblyof church-members which elected the church-wardens and regulated the temporalities of the local church, was exactly the samebody of persons that, when not acting upon church affairs, constituted the township meeting. It was the village moot in itsecclesiastical aspect.' And when the township privileges were,by feudalization, swallowed up in the manorial rights of thebaronage, the vestry was all that remained of the old organiza-416 THE GOVERNMENT OF GREAT BRITAIN.tion of self-government; for the court, or civil assembly, of thetownship was superseded by the baron's manorial court. Butthe church was not absorbed; the vestry remained, and whateverscraps of civil function escaped the too inclusive sweep of thegrants of jurisdiction to the barons the people were fain to enjoyas vestrymen.976. The Poor- law Parish. -It was in this way that it fellout that the township, when acting in matters strictly nonecclesiastical, came to call itself the parish, and that it becamenecessary to distinguish the ' civil parish ' from the ' ecclesiastical parish. ' The vestry came at last to elect, not church-wardensonly, but way-wardens also, and assessors; and in the sixteenthcentury ( 1535, reign of Henry VIII. ) the church-wardens werecharged with the relief of the poor. We are thus brought withineasy sight of the parish of to- day. The legislation of the presentcentury, which has been busy about so many things, has notfailed to readjust the parish and in most cases, as altered bystatute to suit the conveniences of political administration, "themodern civil parish coincides neither with the ancient civil parish, nor with the ecclesiastical parish "; but old parochial associations still survive, and many of the ancient parochial dutiesconnected with the support of the poor. Until 1894 the parochialauthority was still the ancient vestry, reduced almost to a minimum of powers, indeed, but not yet taken from its seat of control . In 1894 Parliament completed the reorganization of localgovernment begun in 1888: vestries were relegated, at any ratein all rural districts, to the exercise of ecclesiastical functionsalone; and the parishes, with a new democratic organization,became once more the vital units of local self-government.977. The Reform of 1894. -All the legislation attempted inEngland during the present century with regard to local government, whether its object was first construction or reform , hascarefully observed the difference between ' rural ' and ' urban ’areas; and the law of 1894 is no exception to the rule. Theparishes which lie within the limits of boroughs or within thelimits of those more thickly settled areas which, though withoutborough organization, are yet distinguished by the law as ' urban 'in their means of local government (sec. 986) , are not directlyTHE GOVERNMENT OF GREAT BRITAIN. 417affected by the Act. But the organization and action of the ruralparishes are revolutionized . They are made self- governing communes, with a very notable list of powers and privileges.―978. Every rural parish, great or small, has now its primaryassembly, its parish meeting, of which every person of legal agein the parish, man or woman, is a member who is qualified tovote for members of the County Council ( secs . 962, 963) or formembers of Parliament (secs. 894, 895); and married women areincluded as well as single. In parishes which have less thanthree hundred inhabitants the parish meeting is the actual governing body, unless the County Council sees fit, with the consent ofthe parish electors, to set up a parish council (and there were somesix thousand such parishes in 1894); but in parishes which havea population of more than three hundred a parish council of fromfive to fifteen members, -the County Council determines thenumber in each case, is given charge of affairs, and the parishmeeting exercises only the functions of electing councillors, consenting to the larger sorts of loans, and voting upon the adoptionand operation of certain statutes, known as the ' adoptive acts, 'which Parliament has left it to them to adopt and act upon ornot as they please. These are the statutes with regard to streetlighting and watching, the establishment of baths and washhouses, the undertaking of certain public improvements, thefoundation of public libraries, and like matters . Women,whether married or single, are eligible for election to the parishcouncils, and even to the chairmanship of those bodies. The termof a parish council is one year.--979. Parishes which are governed by a parish meeting only, without acouncil, usually appoint one or more executive committees for the actualwork of administration; and, if they accept the adoptive ' acts mentioned in the last paragraph, they elect commissioners to carry them intoexecution; but in very many cases the County Councils have given thesesmall parishes councils, and where there are councils they are the executive agents of the parish in practically every sort of business.980. The chairman of a parish council is ex officio a Justice of the Peacefor the county in which he resides; and this feature of the law has, inview of the very large number of parishes in every county, radicallychanged the character of the commission of the peace. Any one maybe a parish councillor, and any one may be a chairman of a parish418 THE GOVERNMENT OF GREAT BRITAIN.council who can be a member of a parish meeting (sec . 978) , and a seaton the county bench of Justices is consequently no longer by any meansthe exclusive possession of country gentlemen.--- 981. The parish councillors are elected in parish meeting, by a mereshow of hands, - unless a formal poll be demanded . No elector, whatever his property or interest, can cast more than one vote in any oneparish; but those who have the requisite property qualification in morethan one parish can be registered , and can vote in every parish in whichthey can prove the possession of the requisite amount of property.ried women cannot qualify, however, upon the same property upon whichtheir husbands have qualified.---— -Mar982. Parochial Powers. The parish councils (or the parishmeetings, as the case may be) exercise a miscellany of powersvariously distributed, until 1894, amongst vestries, church-wardens, overseers of the poor, and commissioners of various sortsand functions. A parish council is a body corporate, and assuch owns and manages the property of the parish. It may acquire property by gift or purchase, not merely for the erectionof parochial buildings and other directly parochial uses, but alsofor the establishment and maintenance of recreation grounds, andfor the purpose of making allotments at a fixed rental to suchresidents of the parish as may wish to acquire holdings. It hascontrol of the water supply of the parish, and is the local sanitary authority; it can acquire, maintain, or change public rightsof way; it maintains the highways and the enclosed burialgrounds of the parish; and it provides for the prevention and extinguishment of fires . It fixes the local assessment and tax rate,on appeal; prepares the parish register; and appoints the overseers and assistant overseers of the poor, who assess the poor ratesand make out the jury lists and the lists of parliamentary andcounty voters . The right to appoint the overseers was takenover from the Justices of the Peace.983. Supervision. The County Councils are given supervisory chargeof the new system of parish government. They group or divide the parishes for action under the law, in their discretion; they may create or dissolve parish councils in the smaller parishes; they determine the numberof members in each parish council; supervise the action of the parish councils in the matter of loans and land allotments; regulate in some degreethe custody and preservation of the parish books and documents; and inmany other ways stand superintendent over their exercise of powers.THE GOVERNMENT OF GREAT BRITAIN. 419984. Urban parishes are for the most part unaffected by the Act of1894 , and still act in civil as well as in church matters through their vestries, as of old.985. The Rural District.-Before 1894 the rural parisheswere grouped in poor-law Unions, governed, in sundry othermatters as well as in the care of the poor, by a Board of Guardians. Various Highway Boards, too, Burial Boards, Bath Commissioners, Library Commissioners, and Public ImprovementBoards, acted for the parishes singly or in groups in the severalspecial matters committed to their direction. The Act of 1894substituted ' Rural Districts ' for the Unions, gave to each District an administrative Council, and united in the hands of thatCouncil the various local functions hitherto dispersed and separated. The District Council is elected for a term of three years(as the Board of Guardians was) , and is charged with the generaloversight and conduct of all business affecting the common interests of the parishes embraced within this District in matters oflocal government. It takes the place of the old Board of Guardians in the administration of the poor law, and is the generalhighway, sanitary, and administrative body of the District. Itsmembers are elected by the parishes in parish meeting, and anyone may be chosen who is a parochial elector in one of the parishes of the District, or who has resided in the District for atwelvemonth preceding the election. The chairman of a DistrictCouncil, like the chairman of a parish council, is ex officio a Justice of the Peace for the county.986. The Urban District. - The urban parishes, outside incorporated boroughs, are also grouped into Districts, each with itsadministrative Council, and to these Councils are assigned muchthe same powers as those which are exercised by the Councils ofthe rural Districts, except that they do not constitute the poorlaw authority of the District. That is still, in the urban Districts, a distinct and separate Board of Guardians, selected for thepurpose. The Local Government Board may, in its discretion,confer upon Urban District Councils, by order, any or all ofthe powers of rural parish councils, however, and so renderthem the most important administrative authorities for theirarea.420 THE GOVERNMENT OF GREAT BRITAIN.987. Women are eligible to serve upon District Councils as well asupon parish councils, and are eligible also to be chosen chairmen; thougha woman, if chairman, is not entitled to act as a Justice of the Peace.988. The County Councils have a certain very considerable supervisorypower over both Rural and Urban District Councils, fixing or altering thenumber of Councillors , hearing appeals from the parishes against theiraction or default, etc.989. Municipal Corporations.-The constitution of those English towns which have fully developed municipal organizationsrests upon the Municipal Corporations Act of 1835 and its various amendments, as codified in an Act of 1882 of the same name.This latter Act is, in its turn, in some degree altered by the LocalGovernment Act of 1888. If the inhabitants of any place wishto have it incorporated as a municipality, they must address apetition to that effect to the Privy Council. Notice of such apetition must be sent to the Council of the county in which theplace is situate and also to the Local Government Board. ThePrivy Council will appoint a committee to consider the petition,who will visit the place from which the petition comes and theresee and hear for themselves the arguments pro and con. Allrepresentations made upon the subject by either the CountyCouncil or the Local Government Board must also be considered.990. Generally there is considerable local opposition either to such apetition being offered or to its being granted when offered; for the government of the place is usually already in the hands of numerous local authorities of one kind or another who do not relish the idea of being extinguished; and there are always, besides, persons who do not care to takepart in bearing the additional expenses of a more elaborate organization.991. If the petition be granted, the Privy Council issues acharter of incorporation to the place, arranging for the extinctionof competing local authorities, setting the limits of the newmunicipality, determining the number of its councillors, andoften even marking out its division into wards.992. Once incorporated, the town takes its constitution readymade from the Act under whose sanction it petitioned for incorporation. That Act provides that the borough shall be governedby a mayor, aldermen, and councillors. The councillors holdoffice for a term of three years, one-third of their number goingTHE GOVERNMENT OF GREAT BRITAIN. 421-out, in rotation, every year. There are always added to thecouncillors one-third as many aldermen elected by the councillorsfor a term of six years, one- half of their number retiring fromoffice every three years, by rotation . The mayor is elected bythe Council, by the aldermen and councillors, that is, whoconstitute but a single body, holds office for one year only,and, unlike the councillors and aldermen, receives a salary. Thecouncillors are elected by the resident ratepayers of the borough."Every person who occupies a house, warehouse, shop, or otherbuilding in the borough, for which he pays rates, and who resideswithin seven miles of the borough, is entitled to be enrolled as aburgess. "1993. Judicial Status - of Boroughs. Whatever powers arenot specifically granted to a municipality remain with previouslyconstituted authorities. The Municipal Corporations Act doesnot provide for the exercise of judicial powers by the authoritiesof a borough by virtue of their separate incorporation. Unlessadditional special provision is made to the contrary, a municipality remains, for the purposes of justice, a part of the county.By petition, however, it may obtain an additional ' commission ofthe peace ' for itself, or even an independent Court of QuarterSessions. Either, then, (a) a borough contents itself in judicialmatters with the jurisdiction of the county Justices; or (b) itobtains the appointment of additional Justices of its own, whoare, however, strictly, members of the county commission andcan hold no separate Court of Quarter Sessions; or ( c) it acquiresthe privilege of having Quarter Sessions of its own. In the lattercase a professional lawyer is appointed by the Crown, under thetitle of Recorder, to whom is given the power of two Justicesacting together and the exclusive right to hold Quarter Sessions,who is made, as it were, a multiple Justice of the Peace.994. Boroughs which have a separate commission of the peace are known as "counties of towns "; those which have independent QuarterSessions as " quarter sessions boroughs. " Every mayor is ex officio Justiceof the Peace, and continues to enjoy that office for one year after the expiration of his term as mayor. This is true even when his borough has noseparate commission of the peace.1 Chalmers, Local Government, p. 74.422 THE GOVERNMENT OF GREAT BRITAIN.995. County Boroughs . In every borough the mayor, aldermen, and councillors, who sit together as a single body, constitutethe 'Council ' of the corporation; and the powers of the Council,if the borough be a ' County Borough, ' are very broad indeed.Since the passage of the Local Government Act of 1888, it isnecessary to distinguish, in the matter of powers, several classesof boroughs. ' County Boroughs ' stand apart from the countiesin 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, ingeneral terms, to have, within the limits of the borough, all thepowers once belonging to the county Justices except those strictlyjudicial in their nature, all the sanitary powers of urban sanitaryauthorities, often the powers of school administration also, allregulative and administrative functions except those of the poorlaw Unions into which urban parishes are still grouped. In thecase of these ' county boroughs, ' all powers conferred upon counties are powers conferred upon them also.996. If the Council of any borough or of a county make representationto the Local Government Board that it is desirable to constitute a boroughwhich has come to have a population of not less than fifty thousand a' county borough, ' the Board shall, unless there be some special reason tothe contrary, hold a local inquiry and provide for the gift of county statusto the borough or not as they think best. If they order the borough constituted a county borough, ' the order is provisional merely, and must beconfirmed by Parliament.997. Other Boroughs. — Boroughs which have not been put inthe same rank with counties and given full privileges of self-administration as ' county boroughs, ' fall into three classes in respectof their governmental relations to the counties in which they lie:(1) Those which have their own Quarter Sessions and whosepopulation is ten thousand or more. These constitute for severalpurposes of local government parts of the counties in which theyare situate. The main roads which pass through them are caredfor by the county authorities, unless within twelve months afterthe date at which the Act of 1888 went into operation (or afterTHE GOVERNMENT OF GREAT BRITAIN. 423the date at which any road was declared a ' main road ' ) theurban authorities specially reserved the right to maintain themseparately. They contribute to the county funds for the payment of the costs of the assizes and judicial sessions held in them.They send members, too, to the County Council. Their representatives, however, cannot vote in the County Council on questions affecting expenditures to which the parishes of the boroughdo not contribute by assessment to the county rates. Beyondthe few matters thus mentioned, they are as independent andas self- sufficient in their organization and powers as the ' countyboroughs ' themselves.(2) Boroughs which have separate Quarter Sessions but whosepopulation numbers less than ten thousand. These are made bythe Act of 1888 to yield to the Councils of the counties in whichthey lie the powers once exercised by their own Councils or Justices in respect of the maintenance and management of pauperlunatic asylums, their control of coroners, their appointment ofanalysts, their part in the maintenance and management of reformatory and industrial schools, and in the administration of theActs relating to fish conservation, explosives, and highways andlocomotives .(3) Boroughs which have not a separate court of Quarter Sessions and whose population is under ten thousand are for allpolice purposes parts of the counties in which they are situate,and have, since 1888, been, for all save a few of the more exclusively local matters of self-direction, merged in the counties, inwhose Councils they are, of course, like all other parts of thecounties, represented.998. Every borough has its own paid Clerk and Treasurer, who areappointed by the Council and hold office during its pleasure, besides" such other officers as have usually been appointed in the borough, or asthe Council think necessary. " If a borough have its own Quarter Sessions, it has also , as incident to that Court, its own Clerk of the Peace and its own Coroner.999. The Financial Powers of a municipal Council are in all casesstrictly limited as regards the borrowing of money. " In each instance,when a loan is required by a municipal corporation , the controlling authority [ the Local Government Board] is to be applied to for its consent.A local inquiry, after due notice, is then held, and if the loan is approved,424 THE GOVERNMENT OF GREAT BRITAIN.a term of years over which the repayment is to extend is fixed by thecentral authority. " The same powers are exercised by the Local Government Board with regard to the larger loans of parish and district Councils also.1000. "The accounts of most local authorities are now audited by theLocal Government Board, but boroughs are exempt from this jurisdiction.The audit is conducted by three borough auditors, two elected by theburgesses, called elective auditors, one appointed by the mayor, called themayor's auditor. " 2--- 1001. Boroughs and Urban Districts. The difference betweenboroughs and urban districts is not at all a difference of size ,boroughs range from a few hundred to half a million inhabitantsand urban districts from a few hundred to a hundred thousand; ²it 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 thepassage of the Act of 1888, be altered only by a special Act ofParliament: it was much easier to apply to the Local Government Board, which could of its own authority create what wasthen known as an Urban Sanitary District. As towns alreadyincorporated grew, therefore, the added portions became independently incorporated as Urban Sanitary Districts, and thusthe town was pieced out. One writer was able to say, in 1882,"Nowhere, from one end of England to the other, do we findan instance (Nottingham alone excepted) of a large boroughwhich is municipally self-contained, and consequently self-governing. " 31002. In the Local Government Act of 1888 it was provided that theboundaries of a borough might be altered by provisional order of theLocal Government Board, upon the address of the borough Council.This order, being provisional, must receive the sanction of Parliament,and is made only after local inquiry. The proceedings, therefore, forchanging the boundaries of a borough were still left much more elaborateand difficult than the free action of the Local Government Board withreference to urban districts .1003. Central Control of Urban Authorities. Full municipal corporations look partly (in the matter of sanitary regulation , for example, )¹ Bunce, Cobden Club Essays, 1882 , p. 283; title , " Municipal Boroughs and Urban Districts. " 2 Chalmers, p . 87. 3 Bunce, p. 298.THE GOVERNMENT OF GREAT BRITAIN. 425to the Local Government Board as a central authority exercising powersof supervision, partly (in the management of the constabulary, for instance , ) to the Home Office, and partly ( if seaports) to the Board of Trade. Urban Districts, however, have but a single central authority setover them, the Local Government Board.1004. London. The metropolis was, until the passage of theAct of 1888, the unsolved problem, the unregenerate monster,of local government in England. The vast aggregation of housesand population known by the world as ' London,' spreading itsunwieldy bulk 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 belligerently defending mediæval privilegesand following mediaval types of organization and procedure, and,round about this ancient City as a nucleus, a congeries of hundredsof old parishes and new urban districts made from time to timeto meet the needs of newly grown portions of the inorganic mass.This heterogeneous body of mediæval trade guilds, vestries, andsanitary authorities had been in some sort bound together since1855 by a Metropolitan Board of Works which exercised certainpowers over the whole area outside the ' City.'1005. The Local Government Act of 1888 made of the metropolis, not a county borough,' but a county, -the ' Administrative County of London ' with its own Lord Lieutenant, Sheriff,and Commission of the Peace, as well as its own Council. Itsnumerous parishes were left to act, as formerly, under their several vestries; and the Act of 1894 has given to those vestries thesame constitution and substantially the same powers that areelsewhere in the kingdom possessed by the Urban District Councils (sec. 986). The City ' is left to occupy its separate placein the great metropolitan county as a quarter sessions boroughnot enjoying separate county privileges, with some limitationsspecial to its case.1006. The number of councillors in the London County Council is fixedat twice the number of members returned to Parliament at the time ofthe passage of the Act of 1888 by the various constituencies of the metropolitan area. The councillors, thus, number 118. The Council of theMetropolis is put upon an exceptional footing with regard to its quota of426 THE GOVERNMENT OF GREAT BRITAIN.aldermen. The aldermen are to be one-sixth, instead of one- third, asmany as the councillors. The total membership of the London Councilis, therefore, 137 .1007. School Districts. The only important area remainingto be mentioned is the School District. Under the great EducationAct of 1870 and the supplementary Acts of 1876 and 1880, England is divided for educational purposes into districts which areunder the supervision of the Education Department of the PrivyCouncil (sec. 883). These districts are not mapped out quite soindependently of previously existing boundaries as other localareas have been; they are made to coincide, so far as possible,with parishes or with municipal boroughs, the adjustment of theirboundaries being left, however, to the discretion 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 attendance upon the schools in accordance with the Education Acts, and to provide, under the directionof the Department, the necessary school accommodation. Otherdistricts 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.1008. The plan of public education in England contemplates the assistance and supplementing of private endeavor. Where private schoolssuffice for the accommodation of the school population of a district, thegovernment simply superintends, and, under certain conditions, aids.Where private schools are insufficient, on the other hand, the governmentestablishes schools of its own under the control of a school board.-1009. Central Control. The plan of central control in England is manifestly quite indigenous. The central government isnot present in local administration in the person of any superintending official like the French Prefect (secs. 442, 445, 454) , orany dominant board like the Administration ' of the PrussianGovernment District (secs . 600-604) . There has, indeed, beendeveloping in England throughout the last half of this century amarked tendency to bring local authorities more and more underthe supervision in important matters of the government departments in London, a tendency which has led to the concentraTHE GOVERNMENT OF GREAT BRITAIN. 427tion, since 1871, in the hands of the Local Government Board ofvarious powers once scattered among such authorities as theHome Office, the Privy Council, etc. But this tendency, which istowards control, has not been towards centralization. It has, sofar, not gone beyond making the advice of the central authorityalways accessible by local officers or bodies, and its consentnecessary to certain classes of local undertakings. The centralgovernment has not itself often assumed powers of origination orinitiative in local affairs . Even where the Local GovernmentBoard is given completest power the choice of the officers who areto put its regulations into force is generally left with the ratepayers in the districts concerned. Thus the authority of theBoard over the Guardians of the Poor is complete; but the Guardians are elected in the parishes. Its authority in sanitary mattersmakes its directions imperative as to the execution of the PublicHealth Acts; but in many cases the local health officers areappointees of the local bodies. It may disallow the by-lawspassed by the boards of sanitary districts, and the by-laws enactedby the county authorities, unless they affect nuisances, may beannulled by an order in Council; but these are powers sparingly,not habitually, used. In the matter of borrowing money, too,local authorities are narrowly bound by the action of the LocalGovernment Board; and its assent to propositions to raise loansis seldom given without very thorough inquiry and without goodreason shown. But all these are functions of system, so to say,rather than of centralization. Coördination in methods of poorrelief is sought, that relief being given under national statutes,and the coöperation of central with local judgment in financialmatters, local debts constituting a very proper subdivision of national finance. But the spirit in which the control is exercised, aswell as the absence of permanent officials representing the centralauthority in local government, and even of permanent instrumentalities for the administration of financial advice, bespeak a systemof cooperation and advice rather than of centralization.1010. Local Government in Scotland. - An Act of 1889 extended to Scotland a system of county government substantiallythe same as that created for England by the Act of 1888; and theAct of 1894 put parish councils like those of England into the428 THE GOVERNMENT OF GREAT BRITAIN.place formerly held by parochial Boards, and erected a separateLocal Government Board for Scotland, of which the Secretary forScotland was made President.THE GOVERNMENT OF THE ENGLISH Colonies.1011. English Colonial Expansion. -Doubtless the most significant and momentous fact of modern history is the wide diffusion of the English race, the sweep of its commerce, the dominanceof its institutions, its imperial control of the destinies of halfthe globe. When, by reason of the closing of the old doors ofthe East by the Turk and the consequent turning about of Europeto face the Atlantic instead of the Mediterranean, England wasput at the front instead of at the back of the nations of the Continent, a profound revolution was prepared in the politics of theworld. 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 almostevery new land worth the having in whatever quarter of theglobe . With her conquests and her settlers have gone also herinstitutions, until now her people everywhere stand for types offree men, her institutions for models of free government.1012. English Colonial Policy. It was only by slow degrees,however, that England learned the right policy towards her colonies. She began, as Rome did, by regarding her possessions asestates, to be farmed for her own selfish benefit. Nothing lessthan the loss of America sufficed to teach her how short- sightedsuch a policy was. But, unlike Rome, she was fortunate enoughto lose the best part of her possessions without being herselfoverwhelmed; and even after the loss of America time and opportunity offered for the building up of another colonial empirescarcely less great.1013. Towards her present colonies her policy is most liberal;for the England of the present day is a very different Englandfrom that which drove America into rebellion. Even the notablelesson emphasized in the loss of America would not have sufficedto bring England to her senses touching her true interests in thecolonies, had she not herself speedily thereafter been brought byTHE GOVERNMENT OF GREAT BRITAIN. 429-other causes to a change of heart. The movements of opinionwhich stirred her to religious revival, to prison reform, to enlightened charity, to the reform of parliamentary representation,to a general social and political regeneration, stirred her also, 'nodoubt, to vouchsafe to her colonists full rights as Englishmen.1014. Lord Durham in Canada. The turning point wasreached in 1837, when a rebellion broke out in Lower Canada.Lower Canada was French Canada. Its government, like thegovernments of the American states south of it in their owncolonial times, consisted of an Executive, a Legislative Councilnominated by the Crown, and a legislative chamber elected bythe colonists. The colonists had been exasperated by just sucharbitrariness and lack of sympathy on the part of the Governorand his Council, and just such efforts to make the salaries andthe maintenance of the judicial officers of the colony independentof the appropriations voted by the popular assembly, as hadhastened the separation of the United States from England; andat last rebellion had been made to speak the demands of the colonists for constitutional reform . The rebellion was put down, butthe defeated colonists were not treated as they would have beenin 1776. A royal commissioner was sent out to them from themother country to redress their grievances by liberal measures ofconcession and reform . This commissioner was Lord Durham .He spoiled his mission by well- meant but arbitrary conduct whichwas misunderstood at home, and he was recalled; but his reportupon the condition of Canada and the measures necessary forher pacification may justly be called the fountain head of all thatEngland has since done for the betterment of government in hercolonies. Lord Durham recommended nothing less than completeself-government, with interference from England in nothing butquestions immediately and evidently affecting imperial interests.1847 saw independent responsible self-government completely established in Canada, and subsequent years have seen it extendedto all the British colonies capable of self-direction.1015. The Self-governing Colonies. —The English colonies, asat present organized, may be roughly classified in two groups as(a) Self-governing and (b) Crown colonies. The self- governingcolonies are nine in number; namely, Canada, Newfoundland,430 THE GOVERNMENT OF GREAT BRITAIN.Cape of Good Hope, the four colonies of the east and south ofAustralia (Queensland, New South Wales, Victoria, South Australia) , Tasmania, New Zealand. In all of these there is practically complete independence of legislation in all matters notdirectly touching imperial interests: and in all there is full responsible government, -government, that is, through ministersresponsible to representatives of the people for their policy andfor all executive acts, because chosen from and representing themajority in the popular chamber. In the Cape of Good Hope,Tasmania, Victoria, and South Australia, both branches of thelegislature are elected; in the other five the upper chamber, theLegislative Council, as it is invariably called outside of Canada, isnominated bythe Executive. But the origin of the upper chamberdoes not affect the full responsibility of the ministers or the practically complete self-direction of the colony.-61016. The Government of Canada. In 1840 Parliament provided by Act for the union of Upper and Lower Canada (now theprovinces of Ontario and Quebec) upon a basis suggested by LordDurham's report; but the legislative union of these two provinces,the one English, the other almost wholly French, was ill-advisedand proved provisional only. Although an Act of 1854 grantedto the united colonies a government as nearly as might be modelled upon the government of England herself, no satisfactorybasis of self-government was reached until, by the British NorthAmerica Act ' of 1867, the colonies were at once separated and reintegrated by means of a federal constitution. That Act is thepresent constitution of the " Dominion of Canada. " Under thatconstitution the seven provinces now comprised within the Dominion, namely, Ontario, Quebec, Nova Scotia, New Brunswick,Manitoba, British Columbia, and Prince Edward Island, haveeach a separate parliament and administration. In each a Lieutenant- Governor presides; in each, as in the Dominion itself, thereis a ministry responsible for its policy and executive acts to a parliament fully equipped for self-direction in local affairs.1017. The provisions of the British North America Act were drafted inCanada and accepted by the Parliament in England without alteration.In the division of powers which they make between the government ofthe Dominion and the governments of the several provinces, they differTHE GOVERNMENT OF GREAT BRITAIN. 431very radically in character from the provisions of our own federal constitution. Our constitution grants certain specified powers to the general government and reserves the rest to the states; the British North AmericaAct, on the contrary, grants certain specified powers to the provinces andreserves all others to the government of the Dominion . Among the powersthus reserved to the federal government is that of enacting all criminallaws.1018. In Ontario , British Columbia, and Manitoba the legislature consists of but a single house.1019. The government of the Dominion is for the most parta very faithful reproduction of the government of the mothercountry. The Crown is represented by the Governor-General,who acts in the administration of the colony as the Crown actsin the administration of the kingdom, through responsible ministers, and whose veto upon legislation is never used, though billsabout whose bearing upon imperial policy there were seriousdoubts have been reserved for the approval of the queen in Council (that is of the ministry of the day in England). The GovernorGeneral's cabinet is known as the Queen's Privy Council andconsists (1897) of thirteen members, representing the majority inthe popular house of the legislature, leading that house in legislation, and in all its functions following the precedents of responsible cabinet government established in England. The legislatureconsists of two houses, the Senate and the House of Commons.The Senate consists of eighty-one members nominated for life bythe Governor- General, -that is, in effect, appointed by the Dominion ministers; for in the composition of the Senate, as in thecreation of peers at home, the advice of the ministers is decisive.Each Senator must be at least thirty years of age, must reside inthe province for which he is appointed, and must possess thereinproperty, real or personal, to the value of four thousand dollars.The House of Commons consists of two hundred and thirteenmembers elected from the several provinces, for a term of fiveyears, upon the basis of one representative for every 22,688 inhabitants, it being understood, however, that Quebec shall neverhave less than sixty-five members.1020. The fourteen ministers composing the Council or cabinet are, aPrime Minister and President of the Council, a Secretary of State, a Minister of Trade and Commerce, Ministers of Justice, Marine and Fisheries,432 THE GOVERNMENT OF GREAT BRITAIN.Railways and Canals, Militia and Defence, Finance, Agriculture, PublicWorks, Interior, a Postmaster General, and two ministers withoutportfolios.1021. The distribution of representation in the Dominion House ofCommons is at present as follows: Ontario has 92 members, Quebec 65,Nova Scotia 20, New Brunswick 14, Manitoba 7 , British Columbia 6,Prince Edward Island 5 , and the North West Territories 4. The representatives are elected by a franchise based upon a small property qualification .1022. The Parliament of the Dominion may be dissolved by the Governor- General upon the advice of the ministers and a new election held, asin England, when an appeal to the constituencies is deemed necessary ordesirable.1023. The Governments of Australia. —The governments of theAustralian colonies are not different in principle, and are veryslightly different in structure, from the government of Canada,except that in Australia the colonies stand apart in completeindependence of each other, having as yet (1897) no formal federal bonds, no common authority nearer than the mother country.Alike in Queensland and in New South Wales there is a nominated Legislative Council and an elected Legislative Assembly;but in Queensland a property qualification is required of theelectors who choose the lower house, while in New South Walesthere is no such limitation upon the suffrage. In South Australiaand Victoria both houses of the legislature are elected; in both aproperty qualification is required of the electors who choose themembers of the upper house, and in Victoria a like qualificationfor membership of the upper house, also. In Victoria certaineducational and professional qualifications are allowed to takethe place of a property qualification. In each of the colonies thegovernor plays the part of a constitutional monarch, acting alwaysupon the advice of ministers responsible to the popular chamber.1024. The Powers of the Colonial Courts. The action of thecourts in the colonies on certain questions furnishes an instructivecounterpart to the constitutional functions of our own courts.The colonial governments are conducted under written constitutions as our own governments are, though their constitutionsare imperial statutes while ours are drafted by conventions andadopted by a vote of the people. And colonial courts exercise the-THE GOVERNMENT OF GREAT BRITAIN. 433same power of constitutional interpretation that belongs to ourown courts and that has often been carelessly assumed to be apeculiar prerogative of theirs. They test acts of legislation bythe grants of power under which they are enacted, an appeallying from them to the Judicial Committee of the Privy Councilin England, which serves as a general supreme court for thecolonies (secs. 924, 1071) .1025. The constitutionality of laws passed by the Dominion Parliamentin Canada is considered first by the courts of the Dominion, going thence,if appealed, to the Privy Council.1026. The Crown Colonies. -All those colonies which havenot responsible self-government are classed as Crown colonies,colonies more or less completely directed by the Colonial Officein London. They range in organization all the way from meremilitary administrations, such as have been established in St.Helena and Gibraltar, through those which, like Trinidad andthe Straits Settlements, have both a nominated Executive and anominated Legislative Council, and those like Jamaica, whosenominated Executive is associated with a Legislative Council inpart elected, to those like the Bahamas and Bermuda, in whichthe Councils are altogether elected, but which have no responsible ministry.1027. Powers of Colonial Governors. It is interesting to havethe testimony of one of the most capable and eminent of Englishcolonial administrators as to the relative desirability of the postof governor in a colony in which he is governor indeed, with noministers empowered to force their advice upon him , and in acolony where he must play the unobtrusive part of constitutionalmonarch. Lord Elgin says with great confidence, in his Letters,that his position as governor of Canada was a position of greaterofficial power than his position , previously held, as governor ofJamaica. He declares his unhesitating belief that there is " moreroom for the exercise of influence on the part of the governorin such a colony as Canada, where he must keep in the background and scrupulously heed his ministers, than under any otherarrangement that ever was before devised, although his influencethere is of course " wholly moral - an influence of suasion, sym-434 THE GOVERNMENT OF GREAT BRITAIN.pathy, and moderation, which softens the temper while it elevates the aims of local politics . ” ¹ This is but another wayof stating the unquestionable truth that it is easier, as wellas wiser, to govern with the consent and coöperation of thegoverned than without it, easier to rule as a friend than asa master.1028. India. --- India stands in matters of government, as in somany other respects, entirely apart from the rest of the BritishEmpire. It is governed, through the instrumentality of itsGovernor- General and his Council, directly from London by amember of the Cabinet, the Secretary of State for India. TheSecretary of State is assisted by a Council of ten or more members appointed by the Crown from among persons who haveresided or served in India. Acting under the Secretary of Stateand his Council in London, there is the Governor- General ofIndia, who is also assisted by a Council of from five to six members, appointed by the Crown, - a Council which is first of alladministrative, but which, when reënforced by from ten to sixteen additional members nominated by the Governor-General, hasalso the functions of a legislative council.1029. The work of the Governor- General's Council is divided amongsome six or seven departments, one of which, that of foreign affairs, isgenerally kept in the hands of the Governor- General himself. These departments do not constitute a ministry; they are regarded simply as committees of the Council. The sessions of the reënforced or legislativecouncil are held always in public .1030. Not all of India is directly administered by the Englishgovernment. There are numerous native states which act withsubstantial independence in local affairs, though under Englishoverlordship and control. Such part of the vast territory asis administered directly by English officials is divided intoprovinces, of which the chief in importance are the so-called'Presidencies ' of Madras and Bombay. The governors ofMadras and Bombay are appointed by the Crown and are assisted, as the Governor- General is, by two councils, adminis1 Letters and Journals of Lord Elgin, ed. by Theodore Walrond, London,1872, p. 126 .THE GOVERNMENT OF GREAT BRITAIN. 435trative and legislative. Lieutenant-Governors, appointed by theGovernor-General, and assisted by an administrative councilonly, preside over Bengal and the North West Provinces. TheLieutenant-Governors or Commissioners of the other provinces,who are also appointed by the Governor-General, are without councils.1031. Greater Britain. - Greater Britain, the world of Englishcolonies, differs very materially from Greater Greece, the widespread Hellas of the ancient world. Hellas was disintegrate:the Greeks carried with them, as of course, Greek institutions,but only to allow those institutions wide differentiation . In noway did Greek settlement signify race integration or a nationalnexus of rule. Englishmen, on the contrary, in English colonies,maintain a hom*ogeneity and integration both of race and of institutions which have drawn the four parts of the world togetherunder common influences, if they have not compacted them fora common destiny. Throughout Europe reformers have copiedEnglish political arrangements; the colonists have not copiedthem, they have extended and are perpetuating and perfectingthem.REPRESENTATIVE AUTHORITIES.Anson, Wm. R., “ The Law and Custom of the Constitution . " 2 Parts ,2d ed., Oxford, 1896.Bagehot, Walter, " The English Constitution," London, 1867. N.Y.,1882.Bourinot, Jas. G., " Federal Government in Canada " (Johns HopkinsUniv. Studies in Historical and Political Science) , Baltimore,1889.Boutmy, Émile, "The English Constitution," trans . out of the French byIsabel M. Eaden; and " Studies in Constitutional Law," trans. byE. M. Dicey. Both, London, 1891 .Burgess, J. W., " Political Science and Constitutional Law," 2 vols.Boston, 1890.Cobden Club Essays, 1882: "Local Government and Taxation in theUnited Kingdom. " London.Dicey, A. V., " The Privy Council, " London, 1887; and " The Law of theConstitution ." 5th ed., London, 1897 .Dilke, Sir C. W., " Problems of Great Britain. " London, 1890.436 THE GOVERNMENT OF GREAT BRITAIN.Dupriez, L., “ Les Ministres dans les principaux Pays d'Europe et d'Amérique, " 2 vols. , Paris , 1892.English Citizen Series: H. D. Traill, " Central Government."M. D. Chalmers, " Local Government. "F. W. Maitland, " Justice and Police."S. Walpole, " The Electorate and the Legislature. "66 T. W. Fowle, The Poor Law."J. S. Cotton and E. J. Payne, “ Colonies and Dependencies. "Feilden, H. St. Clair, " A Short Constitutional History of England," aserviceable topical epitome . Oxford and London.Fonblanque, Albany de, " How We Are Governed. " 16th ed . revisedand reëdited by W. J. Gordon. London, 1889.Gneist, R., " History of the English Constitution, " 2 vols. , N.Y., 1886;"Student's History of the English Parliament, " N.Y., 1887; " Selfgovernment, Communalverfassung und Verwaltungsgerichte. " 3d.ed. , Berlin, 1871; " Das Englische Verwaltungsrecht der Gegenwartin Vergleichung mit dem deutschen Verwaltungswesen. " 3d. ed. ,2 vols. , 1883-1884 .Goodnow, F. J., " Comparative Administrative Law, " 2 vols. , Boston,1893.Hallam, H., " Constitutional History of England, " 2 vols. , N.Y., 1880.Hearn, W. E., " The Government of England. " 2d ed., London, 1887.Imperial Parliament Series: " Local Administration," by W. Rathbone,A. Pell, and F. C. Montague. London, 1885.Macy, Jesse, “ The English Constitution , " London and N.Y., 1897.May, Sir T. E., " Constitutional History of England, " 2 vols. , N.Y.,1880.Meier E. von, " Das Verwaltungsrecht," in Holtzendorff's " Encyklopädie der Rechtswissenschaft," systematischer Theil, pp. 1214 etseq.Munro, J. E. C., " The Constitution of Canada, " Cambridge UniversityPress, 1889.Shaw, Albert, " Municipal Government in Great Britain," N.Y., 1895.Stubbs, William, " Constitutional History of England, " 3 vols. , Oxford,1883.Taswell-Langmead, L., " English Constitutional History," London andBoston. 3d ed. , 1886.Taylor, Hannis, " The Origin and Growth of the English Constitution, "2 vols. , Boston, 1889 and 1898.Todd, Alpheus, " Parliamentary Government in England, " new ed. , London and N.Y., 1888-1889; and " Parliamentary Government in theBritish Colonies, " Boston, 1880.THE GOVERNMENT OF GREAT BRITAIN . 437Local Government Reforms:Baker, Charles E., " The Local Government Act, 1888, with Notes andIndex, " London , 1888.Holdsworth, W. A., " The Local Government Act, 1888, with Introductionand Notes, " London, 1888.Jenks, Edward, " An Outline of English Local Government, " London,1894.Ryde, Walter C., " The Local Government Act, 1894, " London, 1894.XI.THE GOVERNMENT OF THE UNITED STATES.1032. The English Occupation of America. The political institutions of the United States are in the main the political institutions of England, transplanted by English colonists to a newsoil and worked out through a fresh development to new andcharacteristic forms. Though they now show so large an admixture of foreign blood, the main stock of the people of theUnited States is still of British extraction. For several generations the settlements of New England and the South containedscarcely any other element. In the North, in what is nowCanada, and at the mouth of the Mississippi, there were Frenchsettlements; in Florida there were colonists from Spain; theDutch had settled upon the Hudson and held the great port atit* mouth; and the Swedes had established themselves on theDelaware: all along the coast there was rivalry between thewestern 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 regionsof the great coast. New England, Virginia, and the Carolinaswere never seriously disputed against them; and, these oncesecurely taken possession of, the intervening foreigner wassoon thrust out: so that the English power had presently acompact and centered mass which could not be dislodged, andwhose ultimate expansion over the whole continent it proved impossible to stay. England was not long in widening her colonial borders. The French power was crushed out in the North,the Spanish power was limited in the South, and the colonies hadonly to become free to develop energy more than sufficient to 438THE GOVERNMENT OF THE UNITED STATES. 439make all the most competed-for portions of the continent thoroughly English, thoroughly Anglo-American .1033. Adaptation of English Institutions. This growth of theEnglish power in America involved a corresponding expansion ofEnglish institutions. As America became English, English institutions in the colonies became American. They adapted themselvesto the new conditions and the new conveniences of political lifein separate colonies, colonies struggling at first, then expanding,at last triumphing; and without losing their English charactergained an American form and flavor. Some institutions set up inNew England the men who formed Plymouth had doubtlesslearned to know and to like while they were exiles in Holland;but they brought nothing with them that was not suitable toEnglish habit.1034. It would be misleading to say that the English plantedstates in America. They planted small isolated settlements, andthese settlements grew in their own way to be states. The slowprocess was from local, through state, to national organization.And not everywhere among the English on the new continent wasthe form of local government at first adopted the same: there wasno invariable pattern, but every where, on the contrary, a spontaneous adjustment of political means to place and circ*mstance.By all the settlements alike English precedent was followed, butnot the same English precedent. Each colony, with the true English sagacity of practical habit, borrowed what was best suited toits own situation, and originated what it could not borrow. NewEngland had one system, Virginia another, New Jersey and Pennsylvania still a third, compounded after a sort of the other two.1035. The New England Colonies. In New England the centreof government was always the town, with its church and schoolhouse and its neighborly cluster of houses gathered about these.The soil on the coast where the first settlers established themselveswas shallow and slow to yield returns even to hard and assiduoustoil; the climate was rigorous, with its long winters and bleakcoast winds; every circ*mstance invited to close settlement andtrade, to the intimate relationships of commerce and the adventures of sea-faring rather than to the wide- spreading settlementscharacteristic of an agricultural population.440 THE GOVERNMENT OF THE UNITED STATES.1036. The first New Englanders, moreover, were most of themreligious refugees. They had left the Old World to escape theOld World's persecutions and in order to find independence ofworship; they were establishing a church as well as a community;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 churchcould be made, by such association, the vital nerve-centre of theirunion the minister was the ruling head of the community, andchurch membership was in several of the settlements recognizedas identical with citizenship.1037. The Separate Towns. -The several parts of the NewEngland coast were settled by independent groups of settlers.There was the Plymouth colony at Plymouth, and altogetherdistinct from it, the Massachusetts Bay colony at Salem andCharlestown and Boston. To the south of these, founded bymen dissatisfied with the Massachusetts government, were Portsmouth, Newport, and Providence, in what is now Rhode Island.On the Connecticut river other wanderers from Massachusettsbuilt Hartford and Windsor and Wethersfield. Saybrook, at themouth of the Connecticut river, was settled direct from England;so also was the colony of New Haven, on the coast of Long IslandSound west of the Connecticut. From year to year the plantingof towns went diligently on: almost every town became the prolific mother of towns, which either sprang up close about it andretained a sort of dependence upon it, or, planted at a distance,ventured upon an entirely separate life in the wilderness. (Compare secs. 67, 68, 70.)1038. Union of the Towns.Gradually the towns of eachof the general regions mentioned drew together into the coloniesknown to later times, the colonies which were to form the Union.Plymouth merged in Massachusetts; Portsmouth, Newport, andProvidence became but parts of Rhode Island; New Haven wasjoined to Connecticut. But at first these larger colonies werescarcely more than town leagues. It sometimes happened thateach town retained unaltered its separate organization and its vir-THE GOVERNMENT OF THE UNITED STATES. 441tual independence in the regulation of its own local affairs. InRhode Island, particularly, their jealousy of each other and theirreluctance to expose themselves to anything like a loss of perfectautonomy long kept the common government which they most ofthe time maintained at a balance between union and dissolution.In the other New England colonies the same influences manifestedthemselves, though in a less degree. The town system whicheverywhere prevailed was by its nature an extremely decentralizedform of government: government, so to say, came to a separatehead in each locality: and the chief vitality was in the self-governing units of each group rather than in the bonds which connected them with each other.1039. Forms of Town Government. The form of town government was everywhere such as it was quite natural that Englishmenshould have set up. The names of the town officers were borrowedfrom the borough governments at home, and their duties were, asnearly as circ*mstances permitted, the same as the duties of theofficers whose names they bore. The New England town was, atthe same time, in many of its most important and characteristicfeatures, rather a reversion to older types of government than atransplanted cutting of the towns which the settlers had leftbehind them in the England of the seventeenth century. Therewas in it none of the elaborated class privilege that narrowed thetown governments of the England of that time. All the townsmen met in town-meeting and there elected their officers: thoseofficers were responsible to them and always rendered carefulaccount of their actions to the body which elected them. Generally the most important of these officers were called Selectmen,men selected by the town-meeting to carry on the necessarypublic business of the community, and these Selectmen stood inthe closest relations of counsel and responsibility to the townmeeting. In the earliest times the franchise was restricted , inMassachusetts and New Haven at least, to those who were churchmembers, and many were excluded by this rule from participationin the government; but even under such circ*mstances there wasreal and effective self-government. The towns lacked neithervitality nor energy, for they did not lack liberty. In the latedays when great cities grew up, the simple township system had442 THE GOVERNMENT OF THE UNITED STATES.to be abandoned in part; as the colonies expanded, too, theygained in energy and vitality as wholes, and their componentparts, the towns, fell by degrees to a place of less exclusive importance in colonial affairs; but this basis of the township wasnever lost and has remained to the present day the foundation oflocal government in New England.1040. Colonial Organization.-As the towns came togetherinto the groupings which constituted the later colonies other areasof government naturally came into use. Townships were, forjudicial purposes, combined into counties, and by various othermeans of organization a new nexus was given to the several partsof the now extended state. From the first the colonists had their' general courts, ' their central legislative assemblies representative of the freemen. To these assemblies went delegates fromthe several towns comprised in the colony. As the colonies grew,their growth but strengthened their assemblies: it was in thecommon ruling function of these that the union of the severalparts of each colony was made real and lasting.1041. The sheriffs of the counties of colonial Massachusetts were appointed by the Governor. The development of the county organizationbrought into existence, too , Justices of the Peace who met in Quarter Sessions, afterwards called General Sessions, ' and who were the generalcounty authority quite after the fashion of the mother country.¹1042. The Southern Colonies. To this picture of the politicalinstitutions 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 hadcome out for a separate adventure in political, or rather in social,organization, but not for a separate venture in religion; and thecoast they happened upon, instead of being rugged and bleak, waslow and fertile, with a kindly climate, deep rivers, broad stretchesof inviting country, and a generous readiness to yield its fruits intheir season. They had been sent out by a Company (the ' Virginia Company' it was called) in England, to which the Virginiaterritory had been granted by the Crown, and they had no thoughtSee Town and County Government in the English Colonies of NorthAmerica, by Edward Channing, Johns Hopkins University Studies in His- torical and Political Science, 2d Series, pp. 40-42.THE GOVERNMENT OF THE UNITED STATES. 443but to live under the governors whom the Company had placedover them. They founded Jamestown some hundred milesabove the mouth of the James river; but Jamestown was in noway like the New England towns, and it soon became evidentthat town life was not to be the characteristic habit of the colony.The rich soil invited to agriculture, the numerous rivers, full anddeep, stood ready to serve as natural highways, and as the population of the colony increased it spread far and wide along thecourses of the rivers.1043. Contrasts of Character. - There was much more, besidessoil and climate and the differing conditions of settlement, thatmade the Southern colonies unlike the colonies of New England.The New Englanders came for the most part out of the town andvillage population of the mother country: out of a very distinctlymarked middle class with common motives and ideals: themore distinctly marked because most of them had had the sameexperiences and were of the same way of thinking in matters ofreligion. They naturally drew together for the sort of life theyhad left behind them over sea. The settlers of the Southerncolonies, on the contrary, came from no single class and had nocommon habit, except the general habit of the English race.They had been taken by fortune, as if at haphazard, out of thegeneral mass of Englishmen at home, some gentle, some common,some bred to comfort, some not, all bent upon an independentlife and carrying in their purpose the general ideals of their race.Prominent among these ideals, no doubt, was this, that a gentleman must live with space of good acres about him, a lord of thesoil. The life of the Southern colonists was not more Englishthan that of the New Englanders; but it was much more of thegeneral pattern of English life, and more likely to keep near themodels set up by English gentlemen outside the towns. Therecame a time, too, when Virginia received a strong infusion ofCavalier blood, and men came to her quiet lands who had theair and habit of courts, the ambitions of men of caste and estate;not a little of the color of English country life went out of theminto all the ways of the broad tide-water properties; and thegenial air told kindly upon the new fashions. Virginia grewmore than ever like rural England; and followed the new ways444 THE GOVERNMENT OF THE UNITED STATES.until the Scots- Irish came into the valley, to add another qualityand the spice of variety. Alike in the North and in the South,climate, soil , and every natural quality of the region chosenfitted the instinct of the settlers . Both lived after their kind.-1044. Expansion without Separation. There would appear tohave been no idea of organic separation in this southern process ofexpansion, as there was so often in the spreadings of the New England colonists. Great plantations indeed grew up with an almostentirely separate life of their own, with their own wharves on theriver fronts and their own direct trade with the outer world byvessels which came and went between them and England, or between them and the trading colonies to the north; but all thistook place without any idea of organic political separateness.This diffused agricultural population, thus living its own life onthe great rural properties which steadily multiplied in all directions, still consciously formed a single colony, living at firstunder the general government of the Company which had sentout the first settlers, and afterwards, when the Company hadbeen deprived of its charter and possessions, under the authorityof royal governors. Its parts hung loosely together, it is true,but they did not threaten to fall apart: the plan was expansion,not segregation.1045. Southern Colonial Society. The characteristics of thesociety formed under such circ*mstances were of course verymarked. Slaves were early introduced into the colony, andserved well to aid and quicken the development of the plantation system. A great gap speedily showed itself between theowners of estates and the laboring classes. Where slavery exists manual toil must be considered slavish and all the ideas onwhich aristocracy are founded must find easy and spontaneousrootage. Great contrasts of condition soon appeared, such asthe more democratic trading communities of New England werenot to know until the rise of the modern industrial organization;and the governing power rested with the powerful, propertiedclasses.1046. Government of Colonial Virginia. The government ofcolonial Virginia bore, in all its broader features, much the samecharacter as the rural government of England. Organization wasTHE GOVERNMENT OF THE UNITED STATES . 445effected through a machinery of wide counties, instead of bymeans of compacted townships. There was at the head of eachcounty, under this first order of things, a Lieutenant whose dutiescorresponded roughly with those of the Lords Lieutenant in England. The other important executive officer of the county, too,in Virginia as in England, was the Sheriff. The Lieutenant wasappointed by the Governor, was chief of the military (militia)organization of the county, and, by virtue of his membershipin the Governor's Council, exercised certain judicial functionsin the county. The Sheriff also was appointed by the Governor, upon the nomination of the Justices of the county. Hisduties 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 authorizedto hold county court for the hearing of all ordinary cases not ofgrave import; authorized to levy the county taxes, to appointsurveyors of highways, to divide the county into precincts;empowered to act as the general administrative authority ofthe county in the management of all matters not otherwise assigned. The Episcopal church had the same official recognitionin Virginia as in England and contributed the same machinery,-the machinery of the vestry, to local government. Eventhe division of the ' hundred ' was recognized, so close was theoutline likeness between the institutions of the mother countryand 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, (6 was gradation of power from the Governordownward, not upward from the people. " The Justices, likethe other officers of the county, were appointed by the Governor,and held only during his pleasure: the whole system rested upona frank centralization. But still there was liberty. There wasstrong local feeling and individual pride to counteract the subserviency of the officers: those officers showed a more or lessself-respecting independence in their administration; and atleast the spirit of English self- government was kept alive.1 Local Institutions in Virginia, by Edward Ingle, Johns Hopkins University Studies in Historical and Political Science, 3d Series, p. 97 (continuous, p. 199) .446 THE GOVERNMENT OF THE UNITED STATES.1047. Virginia's Colonial Assembly. The vital centre of thepolitical life of the colony was her representative assembly. Soearly as 1619, only twelve years after the foundation of the colony(1607), the Virginia Company, then still in control, had calledtogether in the colony, through its governor, an assembly representing the several plantations then existing, which were in thisway treated as independent corporations entitled to a representative voice in colonial affairs. Later years saw the Assemblydeveloped upon the basis of a representation by towns, hundreds ,and plantations: and even after the governors sent out by theCompany had been supplanted by royal governors this representative body, this House of Burgesses, as it came to be styled,continued to exist, and to wax strong in control. It was sometime before the area of the colony justified that broader divisioninto counties which was so characteristic of later days, and whichchanged very radically the system of representation. The' towns ' and ' plantations ' of the early days seem to have beenknown, at any rate for purposes of representation, as ' boroughs,'and the representative house got its name, ' House of Burgesses,'before county representation grew up. The first Assembly, thatof 1619, sat in joint session with the Governor and his Council,but the more fully developed assembly of later times sat apartas a distinct and independent body. It was this elective representation in the government of the colony which made and keptVirginia a vital political unit, with a real organic life and feeling.1048. The Constitutions of the other Southern Colonies corresponded in the main with the constitution of Virginia. They,too, had the county system and the general representation in acentral assembly, combined with governors and councils appointed by the Crown. All save Maryland. Her constitutiondiffered from the others mainly in this, that in place of the kingstood a proprietor,' to whom the fullest prerogatives of government had been granted.1049. The Middle Colonies had a mixed population. NewYork had been New Netherland, and the Delaware had beenfirst settled by the Swedes and then conquered by the Dutch.When the territory which was to comprise New York, NewJersey, Delaware, and Pennsylvania fell into the hands of theTHE GOVERNMENT OF THE UNITED STATES . 447•English the foreign element was not displaced but merely dominated; and to a large extent it kept its local peculiarities ofinstitution. For the rest, the English settlers of the regionfollowed no uniform or characteristic method of organization.The middle colonies, though possessed of a rich soil, had alsofine seaports which invited to commerce; their climate wasneither so harsh as that of New England, nor so mild and beguiling as that of the southern colonies. Their people were ofall sorts and origins. They built towns and traded, like thepeople of New England; they also spread abroad over the fertilecountry and farmed, like the people of Virginia. They did thesethings, moreover, without developing either the town system ofNew England or the plantation system of Virginia. Townshipsthey had, but counties also; they were simple and democratic,like the New Englanders, and yet they were agricultural also,like the Virginians: in occupation and political organization, aswell as in geographical situation, they were midway betweentheir neighbors to the north and south.- 1050. The Charters: Massachusetts. The political relationsof the colonies to the mother country during the various developments of which I have spoken were as various as their separatehistories. The three New England colonies, Massachusetts,Rhode Island, and Connecticut, possessed charters from theking which virtually authorized them to conduct their owngovernments without direct interference on the part of theAdministration at home. During the first years of Englishsettlement on the American coast it had been the practice ofthe government in England to grant territory on the newcontinent to companies like the Virginia Company of which Ihave spoken, grants which carried with them the right ofgoverning the new settlements subject only to a general supervision on the part of the home authorities. The colony ofMassachusetts Bay was established under such an arrangement:a Company, to which special privileges of settlement and government had been granted, sent out colonists who founded Salemand Boston; but the history of this Company was very differentfrom the history of the Virginia Company. The Virginia Company tried to manage their colony from London, where the448 THE GOVERNMENT OF THE UNITED STATES.members of the Company, who were active liberals and thereforenot very active courtiers, presently got into trouble with thegovernment and had both their charter and their colony takenaway from them. The Massachusetts Company, on the otherhand, itself came to America, and, almost unobserved by thepowers in London, erected something very like a separate stateon the new continent. Its charter was received in 1629; in 1630it emigrated, governor, directors, charter, and all, to America,bringing a numerous body of settlers, founded Salem, Boston,and Cambridge, and put quietly into operation the completemachinery of government which it had brought with it. Itcreated not a little stir in official circles in England when it wasdiscovered that the Company which had been given rights ofsettlement on the New England coast had left the country andwas building a flourishing set of independent towns on its territories; but small colonies at a great distance could not longretain the attention of busy politicians in London, and nothingwas done then to destroy the bold arrangement. Fatal collisionwith the home government could not, however, it turned out, bepermanently, or even long avoided by the aggressive, self-willedrulers of the Massachusetts Company. Many of the laws whichthey passed did not please the Crown, —particularly those whichset up an exclusive religion and tolerated no other; they wouldnot change their laws at the Crown's bidding; and, though theevil day was postponed, it came at last. In 1684 the contestbetween Crown and colony came to a head, and the charter ofthe Massachusetts Company was annulled. Before a changecould be effected in the government, indeed, the king, Charles II.,died, and at the end of the troublous reign of James II. thecolonists quietly resumed their charter privileges; but in 1692the government of William and Mary was ready to deal withthem, and a new form of colonial organization was forced uponthem. They were compelled to take a governor from the king;the royal governor appointed the judicial officers of the colonyand controlled its military forces; and, although the colonistsretained their assembly and through that assembly chose thegovernor's council, the old charter privileges were permanentlylost.THE GOVERNMENT OF THE UNITED STATES. 4491051. The Connecticut Charter. - Rhode Island and Connecticut were smaller and more fortunate. The town of Saybrook,at the mouth of the Connecticut river, had been founded undera charter granted to two English noblemen, and consisted, therefore, of immigrants direct from England; but Saybrook did not.grow rapidly and proved a comparative failure. The successfuland dominant settlement on the Connecticut was that which wasfounded higher up the river at Hartford, by men from Massachusetts who had neither charter nor any other legal rights, butwho had simply come, settled, and made a written constitutionfor themselves. New Haven, westward of the river on theshore of the sound, had been established by a band of Englishimmigrants equally without charter rights, but equally readyand able to construct a frame of government for themselves .Some thirty years after their settlement, the leaders of the'Connecticut colony,' up the river, which meantime had becomean extended cluster of towns, decided that it was time to obtaina charter. Accordingly they sent their governor, Winthrop, toEngland to procure one. He was entirely successful, much moresuccessful than was pleasant to the settlers of the New Havendistrict; for he had obtained a grant which included their landsand colony and which thus forced them to become a part of"Connecticut.' Saybrook had already been absorbed. Thecharter gave the colonists substantially the same rights of selfgovernment that they had had under their own written constitution, adopted upon their first settlement; it was, in other words,just such a charter as Massachusetts then enjoyed . And, unlikeMassachusetts, Connecticut kept her charter, kept it not onlythrough colonial times to the Revolution, but made it at theRevolution her state constitution, and was content to live underit until 1818. Her shrewdness, her acts of timely concession,and her inoffensive size enabled her to turn away from herselfeach successive danger of forfeiture.1052. Rhode Island's Charter. - Rhode Island was similarlyprotected by fortune and sagacious management. Roger Williams, the energetic leader of settlement in that region, obtaineda charter from Parliament in 1644, which was confirmed in 1654,and replaced by a new charter, from Charles II. , in 1663, the year450 THE GOVERNMENT OF THE UNITED STATES.after Connecticut obtained its legal privileges through the instrumentality of Winthrop. As New Haven and Connecticut werejoined by Winthrop's charter, so were the towns of the RhodeIsland country united by the charters obtained by Williams,under the style Rhode Island and Providence Plantations,' —atitle which is still the full official name of the state. The charterof 1663 was retained by the people of Rhode Island even longerthan the people of Connecticut retained theirs. It was not radically changed until 1842."en .- 1053. Proprietary Governments. The governments of almostall the other colonies were at first ' proprietary '; those of Maryland, Pennsylvania, and Delaware remained proprietary until theRevolution. Maryland was granted to the Calverts, Lords Baltimore; Pennsylvania and Delaware were both included in thegrant to William Penn; New York was bestowed upon James,Duke of York, upon whose ascension of the throne, as James II . ,it became an immediate province of the Crown; New Jersey,originally a part of New York, was first bestowed by the Dukeof York on Lord John Berkeley and Sir John Carteret, was afterwards divided, then sold in part, and finally surrendered to theCrown (1702); the Carolinas and Georgia in the same way, givenat first to proprietors, passed very soon into the hands of theroyal government. New Hampshire, after several attempts tounite with Massachusetts, fell quietly into the status of a royalcolony, without having had either a charter or even any regularlyordered proprietary stage of existence.1054. Government under proprietors meant simply governmentby governors and councils appointed by the proprietors, with inall cases a right on the part of the people to exercise a substantialcontrol over the government through representative assemblies.The private proprietors, like the great public proprietor, theCrown, granted charters to their colonies. The charter whichPenn bestowed upon Pennsylvania is distinguished as one of thebest-conceived and most liberal charters of the time; and underit his colony certainly enjoyed as good government as most of thecolonies could secure.1055. Direct Government by the Crown, which came in turn toevery colony except Rhode Island, Connecticut, Pennsylvania, andTHE GOVERNMENT OF THE UNITED STATES. 451Delaware, involved the appointment of governors by the Crown,and also, everywhere except in Massachusetts, the appointmentof the governor's council. It generally involved also the dependence of the colonial judiciary, and in general of the whole administrative machinery of government, upon the royal will; but it,nevertheless, did not exclude the colonists from substantial powersof self-government. Everywhere legislators disciplined governorswith the effective whip of the money power, and everywhere thepeople grew accustomed to esteem the management of their ownaffairs, especially the control of their own taxes, matter-of-courseprivilege, just as much the inalienable right of Englishmen inAmerica as of Englishmen in England.1056. Development of the Assemblies. It was, indeed, as amatter of course rather than as a matter of definite legal rightthat the powers of the colonial assemblies waxed greater andgreater from year to year. Parliament would have been wise tocontinue the policy of neglect which had been the opportunityof the colonies in the development of their constitutional liberties.Left to themselves, they quickly showed what race they were of....As Burke said, in their justification , they " had formed within themselves, either by royal instruction or royal charter, assemblies so exceedingly resembling a parliament, in all their forms, functions, and powers,that it was impossible they should not imbibe some opinion of a similar authority. At the first designation of these assemblies, they wereprobably not intended for anything more ( nor perhaps did they thinkthemselves much higher) than the municipal corporations within thisisland, to which some at present love to compare them. But nothing inprogression can rest on its original plan. . . . Therefore, as the coloniesprospered and increased to a numerous and mighty people, spreading overa very great tract of the globe, it was natural that they should attributeto assemblies so respectable in their formal constitution some part of thedignity of the great nations which they represented . No longer tiedto by-laws, these assemblies made acts of all sorts and in all caseswhatsoever. They levied money, not for parochial purposes, but uponregular grants to the Crown, following all the rules and principles of aparliament, to which they approached every day more and more nearly... Things could not be otherwise; and English colonies must be hadon these terms, or not had at all. In the meantime neither party feltany inconvenience from this double legislature [ the parliament of England, that is, and a colonial legislature ] , to which they had been formedby imperceptible habits, and old custom , the great support of all the gov-...452 THE GOVERNMENT OF THE UNITED STATES .ernments in the world. Though these two legislatures were sometimesfound perhaps performing the very same functions, they did not verygrossly or systematically clash . . . . A regular revenue, by the authorityof Parliament, for the support of civil and military establishments, seemsnot to have been thought of until the colonies were too proud to submit,too strong to be forced, too enlightened not to see all the consequenceswhich must arise from such a system. " 11057. In such assertions of a right of parliamentary self-government it might be expected that the charter colonies would bemost forward; but, as a matter of fact, such was not the case.Massachusetts was ever, indeed, very stubbornly and heroicallyattached to her liberties, but the royal colony of Virginia was nota whit behind her. The assemblies of the royal colonies, no lessthan those of the charter governments, early, and as if by aninstinct and habit common to the race, developed a consciousnessand practice of local sovereignty, which comported well enough,indeed, with a perfect loyalty, — long- suffering in respect of Navigation Acts and all like attempts of the mother country to regulate their place in the politics and commerce of the outside world,-but which was from the first prompt to resent and resist alldictation as to the strictly interior affairs of the settlements.And the same was true of the proprietary colonies, also. Maryland assumed the same privileges that Virginia insisted upon, andeven Pennsylvania, with its population compounded of English,Dutch, and Swedes, manifested not a little of the same spirit ofindependent self- direction.1058. Development of Constitutional Liberty in the Colonies. ———There was, therefore, a comparatively uniform development ofconstitutional liberty throughout the colonies. Everywhere thesame general causes were operative. The settlement and development of a new country gave to the elective governing bodies ofthe colonies a wide and various duty of legislative regulation;the newness of the country created everywhere substantially thesame new conditions of social relationship; everywhere, andmore and more as the years went on, there was a very generalparticipation in communal and colonial affairs by the mass of1Letter to the Sheriffs of Bristol, " Works (ed . Boston, 1880 ) , Vol. II. ,pp. 232, 233,THE GOVERNMENT OF THE UNITED STATES . 453the people most interested: and democratic institutions broughtin their train equality of law and a widespread consciousness ofcommunity of interest. Each colony grew, the while, more andmore vividly conscious of its separate political personality in itsrelations with the other colonies and with the ruling powers inEngland.1059. Political Sympathy of the Colonies. The substantialidentity of institutional development in the several coloniesappears in nothing more clearly or conclusively than in theirclose and spontaneous alliance against England at the Revolution.Despite very considerable outward differences of social conditionand many apparent divergencies of interest as between colonyand colony, they one and all wanted the same revolution. Almostwithout hesitation they ran together to coöperate by the samemeans for the same ends. They did not so much make a commoncause as have a common cause from the first. The real concretecase of revolution, it happened, was made up between Englandand Massachusetts. To the politicians in the mother country it.seemed possible to divide the colonies on grounds of self-interest.Apparently colonies so utterly different in every outward aspect,so strongly contrasted in actual economic condition as Massachusetts and Virginia, could easily be played off against one another.But we now know how little foundation of fact such a view had.Boston's trade was offered to Salem, her commercial rival, as abait to catch Salem's acquiescence in the stringent Boston PortBill which shut Boston off from all trade; but Salem would nothave it. What was to prevent similar treatment of herself in thefuture? More striking still , distant Virginia sounded the callto revolution in behalf of Massachusetts. The contest waspolitical, she clearly perceived, not economical, a contest ofprinciple, not a contest for any temporary interest or momentaryadvantage. From the point of view of politics Massachusetts'quarrel was Virginia's also. Virginia spoke at once, therefore,and as a leader, for combination, for a joint resistance to theaggressions of the home government, and at length for independence and a perpetual union between the colonies. For theshortest possible time did the struggle remain local; almostimmediately it became continental.'454 THE GOVERNMENT OF THE UNITED STATES.1060. American as compared with English Constitutional Development. There was in this development of self-government. inAmerica a certain very close resemblance to the development ofself-government in England; but there were also other pointsof very strong and obvious contrast between the institutionalhistories of the two countries. Both in England and in Americathe process of institutional growth was in the same direction .It began with small, hardy, deep-rooted local institutions, withsmall self-directing communities, and widened from these tonational institutions which bound the constituent communitiestogether in a strong and lasting central union. England beganwith her village communities and her judicial hundreds, ' withthe primitive communal institutions of the Teutonic folk; thesewere first gathered to a head in the petty kingdoms of the daysof the Saxon Heptarchy; another step, and these one-time pettykingdoms were merely the counties of a wider union, andEngland was ready for the amalgamation of the Norman rule,-for the growth of her parliaments and her nationality. Inlike manner, the United States began with isolated settlementsupon a long coast, settlements separate, self- contained, selfregulative; these in time merged in numerous petty colonialstates; and finally these colonial states fitted themselves together into a national union.1061. Process of Growth in America Federation, in EnglandConsolidation. - But the means of integration were in the twocases quite diverse. American integration has been federal;English, absorptive, incorporative. The earlier stages of federation did not appear in the Southern colonies; because there theunity of the first settlement was generally not broken; theVirginia of the Revolution was but an expansion of the Jamestown settlement; growth by agricultural development was notdisintegration like growth by town establishment. But in NewEngland the process was federative from the first, finding its mostperfect type, probably, in Rhode Island, whose town atoms drewso slowly and reluctantly together and so long stoutly resistedthe idea that they had in any sense been absorbed or subordinatedunder the operation of the charters of Rhode Island and Provi- dence Plantations.' What was at first mere confederationnow tereds to be un protes sy grow!?Lone ofconsolidaTHE GOVERNMENT OF THE UNITED STATES. 455between these smallest units, however, by degrees became virtualcoalescence, and the absorbed towns finally formed but subordinate parts in the new and larger colonial units which drewtogether in the Continental Congresses. Between these largerunits, these full -grown colonial states, union was from the firstdistinctly federative, matter of concession and contract. Theywere united in entirely voluntary association, as the Saxonkingdoms were not.1062. Conscious Development of Institutions in America.Throughout their development the colonies presented a markedcontrast to English development in this, that the formulationof their institutions was conscious and deliberate . The royalcolonies, like the proprietary and the charter colonies, exercisedtheir rights of self-government under written grants of privilegefrom the Crown: their institutions grew within the area ofwritten constituent law; from the first they had definite written'constitutions ' wherein the general fabric of their governmentswas outlined. Constitution by written law, therefore, becamevery early one of the matter- of-course habits of colonial thoughtand action. When they cast off their allegiance to Great Britaintheir self-constitution as independent political bodies took theshape of a recasting of their colonial constitutions simply. RhodeIsland and Connecticut, as we have seen, did not even find itnecessary to change their charters in any important particular:they already chose their own governors and officials as well asmade their own laws. The other colonies, with little moretrouble, found adequate means of self-government in changeswhich involved hardly more than substituting the authority ofthe people for the authority of the English Crown. But thecharter, the written constituent law, was retained: the new governments had their charters which emanated from the people, asthe old governments had had theirs given by the king. Popularconventions took the place of the Privy Council. The colonistswere not inventing written constitutions; they were simply continuing their former habitual constitutional life .1063. English Law and Precedent. Whatever the form ofcolonial institutions, however, their substance and content werethoroughly English. In a sense, indeed, even the forms of colo-456 THE GOVERNMENT OF THE UNITED STATES.nial constituent law may be said to have been English, since itwas English practice which originated the idea and habit of giving written grants of privilege to distant colonies. The coloniallaw of Canada and Australia stands to-day in much the samerelation to the law of the mother country that the law of theAmerican colonies bore to the law which created them (sec. 1024).Within the constitutions of the colonial and revolutionary time,at any rate, English law and precedent were closely followed.The English common law has gone with Englishmen to the endsof the world. The English communities in America were but projected parts of the greater English community at home; the laws ofprivate and personal relationship which obtained in England wererecognized and administered also in the colonies; and when, atthe time of the Revolution, the colonists developed out of theircharters the constitutions under which they were to live as independent commonwealths their first care was to adopt this commonlaw under which they had always acted. Important modificationswere made, it is true, in the law thus adopted. It was purgedof all class privilege, of all church prerogative, of all things incompatible with the simple democratic society of the new world;but no real break was made with the principles of English legalprecedent and practice.The re1064. Quite as naturally and quite as completely was Englishpractice adhered to in the public law of the colonies and of theindependent commonwealths into which they grew.lations of the colonial legislatures with the colonial governorswere substantially the relations of King and Parliament reproduced on a small scale, but with scarcely less earnestness andspirit. In all respects, except that of the erection of a responsibleministry representing and shielding the executive, the relationsof the people to their governments suggest English precedent.The powers of the executive were, in small, the powers of theCrown. The courts were constituted as the English courts were,and followed the same rules of procedure. The English inAmerica, being men of the same practical political race as Englishmen in England, struck out not a few lines of development oftheir own in suiting their institutions to the daily needs of a newcivilization and to novel conditions of social organization; Ameri-•THE GOVERNMENT OF THE UNITED STATES. 457can politics were not long in acquiring in many respects a character peculiarly their own. But the manner of development wasEnglish throughout: there was nowhere any turning of sharpcorners: there was nowhere any break of continuity. To thepresent day our institutions rest upon foundations as old as theTeutonic peoples. med.1065. Union: Preliminary Steps. How much of politicalprecedent that was their own the colonists had developed appeared most distinctly when they came to put the timbers oftheir Union together in the days succeeding the Revolution . Thecolonies cannot be said to have framed any federative constituentlaw until 1777, when the Articles of Confederation were drawnup. Before that time they had coöperated without any determinate law of coöperation, acting rather upon the suggestions ofinternational procedure than upon any clear recognition of corporate combination. Preparations for union there had been, andsigns of its coming; but no more. For a period of forty yearsfollowing the year 1643 the New England colonies had heldtogether in a loose confederation against the Indians; in 1754colonial delegates who had met at Albany for conference withrepresentatives of the Six Nations discussed a premature plan ofunion; in 1765 delegates from nine of the colonies met at NewYork and uttered in behalf of all English Americans that protestagainst taxation by Parliament which gave the key-note to therevolutionary movement that followed; and in 1774 sat the firstof the series of Continental Congresses ' with which beganAmerican union. But in none of these steps was there anycreation of organic union: that was to be the result of slowprocesses, and was to be effected only by the formulation of anentirely new body of law.6-It is very 1066. Separateness of the Colonial Governments.important, if a just view is to be formed of the processes by which theUnion was constructed , to realize the complete separateness of the governments of the colonies. They all held substantially the same generalrelation to the English authorities; they had a common duty as towardsthe distant country from which they had all come out; but they were notconnected with each other by any bonds of government on this side thesea. Each of the colonies had its separate executive officials, legislature,458 THE GOVERNMENT OF THE UNITED STATES .and courts , which had no connection whatever with the officers , legislatures, and courts of any other colony. Their coöperation from time totime in meeting dangers which threatened them all alike was natural andspontaneous , but it was intermittent; it rested upon mere temporary necessity and had no basis of interior organic law. The colonists hadmany grounds of sympathy. Besides possessing the same blood and thesame language, they entertained the same ideas about political justice;their dangers, whether proceeding from aggressions on the part of theFrench and Indians which threatened their lives, or from aggressionsby Parliament which threatened their liberties, were common dangers:they were one and all equally interested in the successful developmentand liberal government of the new country with which they had identifiedthemselves . But the motive of their endeavors was always the preservation of their internal and separate self-government; their liberties werehistorically coincident with their separate organization and rights as distinct governments. It was only by a slow and hard experience of thefatal consequences of any other course that the colonies were brought tosubordinate themselves to a central authority which could go further thanmere conference and command them. They saw from the first the necessity for cooperation, but they did not see from the first the absolutenecessity for union. Very slowly, considering the swift influences ofrevolution amidst which they worked, and very reluctantly, consideringthe evident dangers of separation which daily looked them in the face,did they construct the union which was to deprive them of the fulnessof their loved independence.1067. The Confederation. -It was not until 1781 that a foundation of distinct written law was put beneath the practice of union;it was not till 1789 that the law of the union was made organic.In 1781 the Articles of Confederation were finally adopted whichhad been proposed by the Continental Congress of 1777. Butthose Articles gave no real integration to the confederated states:they were from the first a rope of sand which could bind no one.They did little more than legitimate the Continental Congress.Under them the powers of the Confederation were to be exercisedby its Congress; its only executive or judicial organs were to bemere committees or agencies of the Congress; and it was in factto have no real use for executive parts, for it was to have noexecutive rights. Its function was to be advice, not command.It hung upon the will of the states, being permitted no effectivewill of its own. The Articles were in effect scarcely more thanan international convention.THE GOVERNMENT OF THE UNITED STATES. 459-1068. The Articles of Confederation formally vested the exerciseof federal functions in a Congress just such as the Continental Congresses had been, a Congress, that is, consisting of delegates from theseveral states, and in whose decisions the states were to have an absolutely equal voice. No state , it was arranged , should have her vote inthe Congress unless represented by at least two delegates, and no state,on the other hand, was to be entitled to send more than seven delegates;whether she sent two or seven, however, her vote was to be a single vote,upon which her delegates were to agree. The government thus constituted was officially known as " The United States in Congress assembled. "For the exercise of representative functions it was very liberally and completely equipped. To it the independence of the several states in dealingwith foreign powers was entirely subordinated . It alone was to conductinternational correspondence and sanction international agreements; itwas to control the army and navy of the Confederation; it was to presideover federal finances, doing all the borrowing and all the spending thatmight be necessary for the purposes of the common government; it wasto determine the value of current coin and the standards of weights andmeasures; it was to be arbitrator in disputes between the states; in brief,it was to be the single and dominant authority for all the graver commoninterests of the constituent states: its representative position was eminent and complete.1069. Weakness of the Confederation. But it was given absolutely no executive power, and was therefore helpless and contemptible.It could take no important resolution without the difficult concurrenceof nine states, -a concurrence made all the more difficult by the fact thatthe removal of the pressure of the war with England very greatly abatedthe interest of the states in the functions of the central Congress, and ledsome of them to fail again and again to send any delegates to its sessions.Its chief executive agency was a committee of its members representing all the states (hence called the " Committee of States ") and boundby the same hard rule of obtaining the concurrence of nine of its thirteen members to every important executive step. Above all, its onlypower to govern was a power to advise. It could ask the states formoney, but it could not compel them to give it; it could ask them fortroops, but could not force them to heed the requisition; it could maketreaties, but must trust the states to fulfil them; it could contract debts,but must rely upon the states to pay them. It was a body richly enoughendowed with prerogatives , but not at all endowed with powers.United States in Congress assembled " formed a mere consultative andadvisory board.-" The1070. Need of a Better Union. It was the fatal executiveimpotency of the Confederation which led to the formation of the460 THE GOVERNMENT OF THE UNITED STATES.present stronger and more complete government. The old Continental Congresses had sufficed, after a fashion, to keep thecolonies together so long as the pressure of the war continued.Throughout that war there had been, despite much indifferencenow and again on the part of some of the colonies to their duty,and of not a little positive dereliction of plain obligations, aremarkable degree of energy and unity of action among the confederated colonists. But when the pressure of the war wasremoved there was an ominous access of indifference, an illboding decrease of respect for plighted faith between the states.Signs fast multiplied both of the individual weakness of thestates and of the growth of threatening jealousies between them.A war of tariffs began between neighbor states on the seaboard,notably between New York and New Jersey and between Virginia and Maryland . In Massachusetts there flared out, byreason of the poverty engendered by the war, a rebellion ofdebtors under Daniel Shays which it was for a moment fearedthe state authorities might find it impossible to cope with. Itspeedily became evident that, both for the sake of internal orderand of interstate peace and goodwill, a real central governmentwas needed. Central consultation would not suffice; there mustbe central government. The Confederation, therefore, was noreal advance upon the old Continental Congresses. Before asingle decade had passed over the new government with its fairspoken Articles a new union had been erected and the real history of the United States begun.1071. The Constitution: Colonial Precedents. The presentConstitution erects a very different government. It is the charterof a federal state, which has a commanding law and an independent power of its own, whose Constitution and law are the supremelaw of the land. The Convention which framed the new Constitution met in Philadelphia in May, 1787, and fused together overthe slow fires of prolonged debate the elements of English andcolonial precedent which were to constitute the government ofthe United States. In the debates of that Convention duringthat memorable summer are to be read the particulars of thetranslation of English precedent into American practice madeduring the formative colonial period. Through the instrumen-THE GOVERNMENT OF THE UNITED STATES. 461tality of the able men who composed that extraordinary assembly, the government of the United States was fitted outwith the full experience of the colonies and of the revolutionary states.¹ It was arranged that the legislature of the newfederal government should consist of two houses, not in directimitation of the English system, whose House of Lords wedid not have the materials for reproducing, but in conformitywith an almost universal example set by the states. A singlestate furnished the precedent in accordance with which a realdifference of character was given to the two houses. The lowerhouse of the Connecticut legislature was constituted by an equalrepresentation of the towns of the state, while her upper house,composed of the governor, lieutenant-governor, and twelve ' assistants,' represented her people at large: and Connecticut'sexample showed the Convention a convenient way of compromise by which they could reconcile the two parties within itwhich were contending, the one for an equal representation ofthe states in Congress after the absolute manner of the Confederation, the other for a proportional representation of the people.The Senate, it was agreed, should represent the states equally,the House of Representatives the people proportionally. Thenames Senate and House of Representatives were to be foundalready in use by several of the states. The single Executive,the President, was an obvious copy of the state governors, manyof whom at that time bore the name of president; his veto powerwas to be found formulated ready to hand in the constitution ofNew York; a method of impeachment was already prepared inthe constitutions of half a dozen states. Several states had alsothe office of Vice- President. With a fine insight into the realcharacter of the government which they were constructing, theConvention provided that its judiciary should be placed, notunder the President or the houses, but alongside of them, upon1 In describing the work of the Convention I follow here Professor Alexander Johnston's admirable exposition given in the New Princeton Reviewfor September, 1887, under the title " The First Century of the Constitution . " A convenient brief survey of the chief features of the state constitutions at the time of the formation of the present government of the Unionmay be found in Hildreth , Vol. III. , Chap. XLIV.462 THE GOVERNMENT OF THE UNITED STATES.a footing of perfect equality with them. A similar arrangementobtained under the state constitutions. The function of constitutional interpretation was nowhere explicitly conferred, but existed.in the nature of the case. It, necessarily as old as written charters and constitutions, was an inevitable corollary to their fundamental proposition of a gift of limited powers. Written constituent law is by its very nature a law higher than any statute thelegislature acting under it can enact, and by that law, as by aninvariable standard, must the courts test all acts of legislation.¹The colonial courts had once and again upon this principlequestioned the validity of colonial legislation, and the SupremeCourt of the United States had long had a prototype in theJudicial Committee of the Privy Council, whose function itwas to hear appeals from the colonies, and whose practice ithad been to pronounce against all laws incompatible with theroyal charters ( secs. 924, 1024) .²1072. When they came to equip Congress with powers, the Convention adopted the plan of careful enumeration. They set out theacts of government which were to be permitted to the legislatureof the new government in a distinctly cast list of eighteen items.Even in doing this, however, they may be said to have been simplyrecording the experience of the Confederation . They were givingCongress the powers for lack of which the Congress of the Confederation had proved helpless and ridiculous. It was only whenthey came to construct the machinery for the election of the President that they left the field of American experience and Englishexample and devised an arrangement which was so original thatit was destined to break down almost as soon as it was put inoperation. What Hamilton said of it!1073. This general statement of the broader features of the selectivework of the Convention will suffice for the present: other more particularreferences to state precedent and experience may be made in their properconnections in our further discussion of the government. I wish in theseparagraphs only to fix the attention of the student, by way of preparation,upon the instructive fact that the work of the Convention was a work of1 See A. V. Dicey, The Law ofthe Constitution , Chap. III.; and J. Bryce,The American Commonwealth, Chap. XXIII.2 See Brinton Coxe, Judicial Power and Unconstitutional Legislation.THE GOVERNMENT OF THE UNITED STATES. 463selection, not a work of creation , and that the success of their work wasnot a success of invention , always most dangerous in government, but asuccess of judgment, of selective wisdom, of practical sagacity, the onlysort of success in politics which can ever be made permanent.1074. Character of the New Government. It is one of the distinguishing characteristics of the English race whose politicalhabit has been transmitted to us through the sagacious generationby whom this government was erected that they have never feltthemselves bound by the logic of laws, but only by a practicalunderstanding of them based upon slow precedent. For this racethe law under which they live is at any particular time what it isthen understood to be; and this understanding of it is compoundedof the circ*mstances of the time. Absolute theories of legalconsequence they have never cared to follow out to their conclusions . Their laws have always been used as parts of thepractical running machinery of their politics, parts to be fittedfrom time to time, by interpretation, to existing opinion and socialcondition.-1075. Character of the Government Changes with Opinion.It requires a steady, clear-viewed, thoroughly informed historicalsense, therefore, to determine what was at any given time thereal character of our political institutions. To us of the presentday it seems that the Constitution framed in 1787 gave birth in1789 to a national government such as that which now constitutesan indestructible bond of union for the states; but the men of thattime would certainly have laughed at any such idea, — and for theEnglish race, as I have said, every law is what those who administer it think that it is. The men of 1789 meant to form "a moreperfect union " than that which had existed under the Confederation: they saw that for the colonies there must be union or disintegration; they thought union needful and they meant to have it.in any necessary degree. But they had no special love for theunion which they set about consummating, and they meant tohave as little of it as possible, as little as might be compatiblewith wise providence in respect of the welfare of the new-fledgedstates. They were even more afraid of having too strong a central government than of having one which was too weak, and theyaccepted the new constitution offered them by the Convention of-464 THE GOVERNMENT OF THE UNITED STATES.Suniey1787 because convinced of the truth of the arguments urged by itsfriends to the effect that the union would be federal merely andwould involve no real sacrifice of individuality or autonomy onthe part of the states.1076. Early Sentiment towards the Union. It is astonishingto us of this generation to learn how much both of hostility andof indifference was felt for the new government, which we see tohave been the salvation of the country. Even those who helpedto make it and who worked most sincerely for its adoption entertained grave doubts as to its durability; some of them even, indespondent moments, questioned its usefulness. Philosophicstatesmen like Alexander Hamilton supported it with ardent purpose and sustained hope; but for the average citizen, who was notin the least degree philosophic, it was at first an object of quiteunexciting contemplation. It was for his state, each man felt,that his blood and treasure had been poured out: it was thatMassachusetts and Virginia might be free that the war had beenfought, not that the colonies might have a new central governmentset up over them. Patriotism was state patriotism. The stateswere living, organic persons: the union was an arrangement,possibly it would prove to be only a temporary arrangement;entirely new adjustments might have to be made.1077. Early Tolerance of Threats of Secession. It is by thisframe of mind on the part of the first generation that knew thepresent Constitution that we must explain the undoubted earlytolerance for threats of secession. The Union was too young tobe sacred; the self-love of the states was too pronounced to beaverse from the idea that complete state independence might atany time be resumed. Discontent in any quarter was the signalfor significant hints at possible withdrawal. As the new systemlived on from year to year and from year to year approved itselfstrong and effective it became respected; as it gathered dignityand force regard was added to respect, until at last the federalgovernment became a rallying centre for great parties moved bygenuine national sentiment. But at first neither love nor respectshielded the federal authorities from the jealousies and menacesof the states. The new government was to grow national withthe growth of a national history and a national sentiment.THE GOVERNMENT OF THE UNITED STATES. 4651078. Growth of the National Idea. — The career and fate ofthe Federalist party very well illustrate the first state of opinionconcerning the Union. The Federalist party was the party ofthe Constitution, the party which had been chiefly instrumental in bringing about the adoption of the new frame of government. Immediately upon the inauguration of the presentUnion this party of its friends was put in charge of the newcentral body politic . It presided over the critical period of itsorganization, and framed the first measures which gave it financial credit, international consideration, security, and energy.But it soon became evident that the Federalists held views as tothe nature of the new government which not all of those who hadvoted for the adoption of the Constitution were willing to sanction. They assumed for the federal authorities prerogatives oftoo great absoluteness, and seemed to many to be acting upon theidea that the purpose of the Constitution was to subordinate, andif need be sacrifice, state interests to the interests of the generalgovernment. Very speedily, therefore, they brought a reactionupon themselves, and were displaced by a party which felt thatthe limitations put by the Constitution upon federal authorityought to be very strictly observed. This new party, calling itself'Democratic-Republican,' may be said to have been created by theinjudicious excesses of the Federalists; and from this point ofview the Federalist party may be said to have effected its owndestruction. After its first national defeat it never again cameinto power. Rapidly in some places, slowly in others, it wentutterly to pieces.1079. But, although the Federalist party was destroyed, timeworked in favor of its political conceptions. The DemocraticRepublicans soon found that success in conducting the affairs ofthe federal government was, even for them, conditioned upon avery liberal reading of the authority conferred by the Constitution; and by slow degrees they drifted into practices of broadconstruction ' quite as abhorrent to their own first principles as the much berated measures of the Federalists had been. But theDemocratic- Republicans, —or the Democrats as they were beforelong more briefly called, had the advantage of a correspondingchange in public opinion. That, too, was steadily becomingnationalist in its tendencies.Federnists.1, mere desessionist466 THE GOVERNMENT OF THE UNITED STATES.- 1080. Railroads, Expansion, and War aid the National Idea.So long as the people of one section of the country saw little ornothing of the people of the other sections, separateness of feeling and localness of view continued to exist and to exercise acontrolling force; the majority of the people continued to putthe states before the nation in their thoughts and to demandmore or less punctilious regard for state prerogatives. But whenrailroads began to be built and to multiply; when people fromall parts of the Union began to go out and settle the Westtogether; when seeing each other and trading with each otherbegan to make the people of all the states very much alike inmost of the greater things of habit and institution, and even inmost of the smaller things of opinion and conduct; when newstates which had grown up in the West without any of the oldconservative colonial traditions began to be admitted to the Unionin increasing numbers, regarding themselves as born in and ofthe Union; when a second war with England and a hot strugglewith Mexico had tested the government and strengthened a sentiment of national patriotism, then at length it began to bevery generally thought that the Federalists had been right afterall; that the federal government ought to come first in consideration, even at the cost of some state pride.-1081. Slavery stands in the Way of Nationality. What stoodmost in the way of the universal growth of this sort of nationalfeeling was the great difference between the northern and southernportions of the Union caused by the existence of slavery in theSouth. So long as the laborers in the South were slaves and thoseof the North free men, these two sections could not become likeone another either socially or politically, and could not have thesame national feeling. The North and Northwest meant onething when they spoke of the nation; while the South meant quiteanother thing. Each meant a nation socially and politically likeitself. The two sections, therefore, rapidly became dissatisfiedwith living together under the same political system, and the secession so much talked about in various quarters in the earlier daysof the Union at last became a reality. Inevitably came the war ofsecession, by means of whose fiery processes the differences of institution between North and South were to be swept utterly away.THE GOVERNMENT OF THE UNITED STATES. 467-1082. Civil War completes the Union. The war wroughtchanges of the most profound character. Secession was prevented, the Union was preserved, and slavery was foreverabolished; these were the immediate effects of the struggle.But the remoter results were even more important. They penetrated to the changing of the very nature of the Union, thoughthe form of the federal government remained in all essential features unaltered. The great effect of the war was, that the nationwas made, in social institutions, at last hom*ogeneous. Therewas no longer any permanent reason why the South should notbecome like the rest of the country in character and sentiment.Both sections were brought to the same modes of life and thought;there was no longer any legal obstacle to their being in reality onegreat nation. The effort made in the war, moreover, to preservethe Union, and the result of the war in making the country atlast socially hom*ogeneous throughout, has made the federal government, as the representative of the nation, seem greater in oureyes than ever before, and has permanently modified in the profoundest manner the way in which all the old questions concerning constitutionality and state rights are regarded. Spanish War.1083. Present Character of the Union. It by no means follows that because we have become in the fullest organic sensea nation, ours has become a unitary government, its federal features merged in a new national organization. The governmentof the Union has indeed become permanent, the cherished representative, the vital organ of our life as a nation; but the stateshave not been swallowed up. Their prerogatives are as essentialto our system as ever, are indeed becoming more and moreessential to it from year to year as the already vastly complexorganism of the nation expands. But, instead of regarding thegovernment of the United States and the government of a stateas two governments, as our fathers did, we now regard them,if we may make a matter-of-fact analysis of our working views inpolitics, as two parts of one and the same government, twocomplementary parts of a single system. The value of the planof government which our statesmen adopted at the first, the planof functions divided between national and state authorities, hasdepreciated not a whit: we are only a little less anxious about--६.468 THE GOVERNMENT OF THE UNITED STATES.the clearness of the lines of division. The national governmentstill has its charter, somewhat enlarged since the war, but substantially the same document as of old; and the national authorities must still confine themselves to measures within the sanctionof that charter. The state governments, too, still have theircharters, and still have valid claim to all powers not specificallydelegated to the government of the Union. Liberal constructionof the federal charter the nation wants, but not a false construction of it. The nation properly comes before the states in honorand importance, not because it is more important than they are,but because it is all important to them and to the maintenance ofevery principle of government which we have established andstill cherish. The national government is the organic frame ofthe states: it has enabled, and still enables, them to exist.1084. Present Character of the Government of the Union.It is perhaps most in accordance with the accomplished resultsof our national development to describe the government of theUnited States, not as a dual government, but as a double government, so complete is the present integration of its state and federal parts. Government with us has ceased to be plural and hasbecome singular, the government of the United States . Distinctas are its parts, they are not separate. The state and federalsystems are so adjusted under our public law that they may notonly operate smoothly and effectively each in the sphere which isexclusively its own, but also fit into each other with perfect harmony of cooperation wherever their jurisdictions cross or areparallel, acting as parts of one and the same frame of government, with an uncontested subordination of functions and anundoubted common aim.1085. Although these two parts of our government are thusvitally united, however, thus integrated into what is in realitya single scheme of government, state law by no means dependsupon federal law for its sanction. The Constitution of theUnited States and the laws and treaties passed in pursuancethereof are indeed the supreme law of the land , but their supremacy does not trench upon or displace the self-originatedauthority of the states in the immensely important sphere reserved to them. Although it is true, taking our system as aBryce's wonder at the duality.THE GOVERNMENT OF THE UNITED STATES . 469whole, that the governments of the states are subordinate in ourpolitical order to the government of the Union, they are not subordinate in the sense of being subject to be commanded by it, butonly in being less than national in their jurisdiction. Eng.com- -The common and convenient distinctior ishatredivision81086. The States not Administrative Divisions but ConstituentMembers of the Union.between central and local government furnishes here no appropriate ground of discrimination. A central government, as contradistinguished from a local government within the meaning ofthat distinction, is a government which prescribes both the constitution and the mode of action of the lesser organs of the system to which it belongs . This the governments of the states dowith reference to the townships, the counties, the cities within.their territories: these local bodies are merely administrativedivisions of the states, agencies delegated to do the daily workof local government. But there is no such relationship betweenthe federal government and the states. They are not administrative divisions but constituent members of the Union, coördinate with the Union in their powers, in no sense subject to itin their appropriate spheres. They are excluded, indeed, by thefederal Constitution from the exercise of certain functions, butthe great and all-important functions which they do exerciseare not given them by that Constitution: they are exercised, onthe contrary, upon the completest principles of self-direction.We may properly distinguish the government of a county andthe government of a state by the distinction between local andcentral government, but not the government of a state and thegovernment of the Union.NedCHARACTER, ORGANS, AND FUNCTIONS OF THE STATES.1087. The States properly come first in a description of thegovernment of this country, not only because it was in conformity with state models and precedents that the federal governmentwas constructed, but also and more particularly because the greatbulk of the business of government still rests with the stateauthorities. The states still carry by far the greater part ofthe weight of the governing function, still constitute the ordinary470 THE GOVERNMENT OF THE UNITED STATES.fountains of justice and of legal right, still stand nearest thepeople in the regulation of all their social and legal relationships. Like the Swiss Cantons (sec. 643) , our states have givento the government which binds them together their own forms ofconstitution. Even more than the Cantons, our states have retained their right to rule their citizens in all ordinary matterswithout federal interference. They are the chief creators of lawamong us. They are the chief constituent units of our politicalsystem not only, but are also self-directive units . They make upthe mass, the body, the constituent tissue, the organic stuff of thegovernment of the country. " The federal government," as Tocqueville said, " is the exception; the government of the states is therule. " To them is intrusted our daily welfare, to the federal government only certain collective interests. Upon the character of thestate governments depends the character of the nation in its severalconstituent members; upon the character of the federal government depends the character of the nation as a whole. If we areto begin our study of our institutions at the centre, at the heartof self-government, we must begin with the states.-1088. The Law of the States: its Character. The law of eachstate consists of two great parts, (1) the Constitution, statutes, andtreaties of the United States and (2) the constitution and statutesof the state. The Constitution, statutes, and treaties of the UnitedStates are the supreme law of the land not so much in the senseof being set above the constitutions and laws of the states as inthe sense of being, by virtue of the principles of our public law,integral parts of the law of the states. The constitutions ofseveral of the states explicitly declare the Constitution of theUnited States to be a part of their fundamental law: but suchdeclarations are only formal recognitions of a principle now in allcases indubitable. On their legal as well as on their political sidethe two parts of our system have been completely integrated.Upon the state courts as well as upon the courts of the UnitedStates rests the duty of administering federal law. The federalConstitution is a negative portion of state law in respect of thelimitations which it sets to the sphere of state activity; but thelaws passed by Congress under the authority of that Constitution are also positive portions of state law, whose mandates allTHE GOVERNMENT OF THE UNITED STATES. 471officers of government, whether state or federal, are bound toobey.1089. The constituted authorities of the states do not stand inthe same relation, however, to the Constitution and laws of theUnion that they bear to state law. Of state law they are thefinal interpreters, but of federal law they are only provisional interpreters. In acting upon federal law state officers always actsubject to the supervision of the federal tribunals.1090. The functions of the state courts with regard to the interpretation of federal law very forcibly illustrate the adjustments of oursystem. If in any case brought in a state court the question arise whethera certain state law involved in the case is or is not in violation of the Constitution of the United States, the court may freely give its judgment uponthe question, and if its judgment be that the state law is not constitutionalthat judgment is conclusive. If, however, it should declare the law to bein agreement with the federal Constitution , its opinion may be cited to afederal tribunal for revision. The federal law is, thus, not regarded as athing apart from the law of a state, too sacred to be handled by any butthe federal courts, its specially constituted guardians: it is a part of statelaw and the state courts may declare and apply its principles. But in thelast resort the federal courts must themselves shield it from a too liberalor too prejudiced judgment by state judges, who may very conceivablybe interested to vindicate the statutes of their state as against any objections drawn from the law of the Union. Both for the sake of making ituniform and for the sake of keeping it supreme federal law must receiveits final adjudication in its own courts.1091. Scope of State Law. A moment's thought suffices toreveal how very great a field of activity, how preponderant a partremains under our system to the states. The powers of the federal government seem great by enumeration. Besides being intrinsically powers of the greatest importance, they are made themore imposing in the Constitution by the fact of their being setforth in an exhaustive list. The residuum of powers that remainsto the states, consisting as it does of unenumerated items, isvague, and because vague seems unimportant by comparison.A moment's examination of this residuum however, a moment'sconsideration of its contents, puts a very different face on thematter. It is worth while for the sake of an adequate understanding of the real division of powers under our government to472 THE GOVERNMENT OF THE UNITED STATES.give to the powers remaining with the states something like thesame setting forth that is given to those granted to the Union.- 1092. Legislative Powers of the Union. The Constitution ofthe United States grants to Congress first of all the power to layand collect taxes, duties, imposts, and excises for the support ofthe government of the Union, the payment of its debts, and thepromotion of the common defence and welfare, and also the powerto borrow money on the credit of the United States; but thesepowers of taxation and borrowing belong also to the states, exceptthat they must raise their revenues without resort to duties, imposts, and excises, the privilege of imposing these being reservedto the Union exclusively. The powers which distinguish thegeneral government from the governments of the states are notthese powers of raising money but these others: To control themonetary system of the country, to maintain post-offices and postroads, to grant patents and copyrights, to deal with crimes committed on the high seas or against the law of nations, to shape theforeign relations of the country, to declare war and control themilitary forces of the nation, and to regulate commerce both withforeign countries and among the states. It is empowered also toestablish uniform rules of naturalization and uniform laws concerning bankruptcy; but these powers do not belong to it exclusively.In case Congress does not act in these matters, the states mayadopt laws for themselves concerning them. All the powers ofthe general government are plainly such as affect interests whichit would be impossible to regulate harmoniously by any schemeof separate state action, and only such; all other powers whateverremain with the states.1093. Powers withheld from the States. - Some powers, it istrue, the Constitution of the United States expressly withholdsfrom the states, besides those granted exclusively to the generalgovernment. No state may pass any bill of attainder, ex post factolaw, or law impairing the obligation of contracts, or grant anytitle of nobility; no state may, without the consent of Congress,lay any imposts or duties, keep troops or ships of war in time ofpeace, enter into any agreement with another state or with aforeign power, or engage in war unless actually invaded or in suchimmediate danger as will not admit of delay. But these prohibi-THE GOVERNMENT OF THE UNITED STATES. 473tions obviously curtail scarcely at all the sphere which the stateswould in any case normally occupy within the scheme of federalunion.1094. Powers left with ― the States. Compared with the vastprerogatives of the state legislatures, these limitations seemsmall enough. All the civil and religious rights of our citizensdepend upon state legislation; the education of the people isin the care of the states; with them rests the regulation of thesuffrage; they prescribe the rules of marriage, and the legal relations of husband and wife, of parent and child; they determine thepowers of masters over servants and the whole law of principaland agent, which is so vital a matter in all business transactions;they regulate partnership, debt and credit, and insurance; theyconstitute all corporations, both private and municipal, exceptsuch as specially fulfil the financial or other specific functions ofthe federal government; they control the possession , distribution,and use of property, the exercise of trades, and all contractrelations; and they formulate and administer all criminal law,except only that which concerns crimes committed against theUnited States, on the high seas, or against the law of nations.Space would fail in which to enumerate the particular items ofthis vast range of power; to detail its parts would be to catalogueall social and business relationships, to set forth all the foundations of law and order.1095. A striking illustration of the preponderant part played by statelaw under our system is supplied in the surprising fact that only one outof the dozen greatest subjects of legislation which have engaged the publicmind in England during the present century would have come within thepowers ofthe federal government under the Constitution as it stood beforethe war, only two under the Constitution as it stands since the addition ofthe war amendments. I suppose that I am justified in singling out asthese twelve greatest subjects of legislation the following: Catholic emancipation, parliamentary reform, the abolition of slavery, the amendmentof the poor-laws, the reform of municipal corporations , the repeal of thecorn laws, the admission of the Jews to Parliament, the disestablishmentof the Irish church, the alteration of the Irish land laws, the establishmentof national education, the introduction of the ballot, and the reform of thecriminal law. Of these every one except the corn laws and the abolitionof slavery would have been under our system, so far as they could bedealt with at all, subjects for state regulation entirely; and it was only474 THE GOVERNMENT OF THE UNITED STATES.by constitutional amendment made in recognition of the accomplishedfacts of the war that slavery, which was formerly a question reservedfor state action, and for state action alone, was brought within the fieldof the federal authority.¹1096. Non-constitutional Provisions in State Constitutions.One of the most characteristic circ*mstances connected with ourstate law is the threatened loss of all real distinction betweenconstitutional and ordinary law. Constitutions are in theirproper nature bodies of law by which government is constituted,by which, that is, government is given its organization andfunctions. Private law, the regulation of the relations of citizens to each other in their private capacities, does not fallwithin their legitimate province. This principle is fully recognized in the construction of our federal Constitution, whichis strong and flexible chiefly because of its great, its admirablesimplicity and its strictly constitutional scope. But constitutionmaking in the states, especially in the newer states, has proceeded upon no such idea. Not only do the constitutions ofthe states go very much more into detail in their prescriptionstouching the organization of the government; they go far beyondorganic provisions and undertake the ordinary, but very different,work of legislative enactment. They commonly embody regulations, for example, with reference to the management of stateproperty, such as canals and roads, and for the detailed administration of the state debt; they determine the amounts and sortsof property which are to be exempt from seizure for privatedebt; they formulate sumptuary laws, such as those forbiddingXthe sale of intoxicating liquors; at a score of points they enterwithout hesitation or restraint the field usually reserved for theaction of legislative bodies.1097. Distrust of Legislation . The motive is dissatisfactionwith legislation, distrust of legislators, a wish to secure for certain classes of law a greater permanency and stability than isvouchsafed to statutes, which stand in constant peril of altera1 Compare J. F. Jameson, Introduction to the Constitutional and PoliticalHistory of the Individual States, Johns Hopkins University Studies in His- torical and Political Science, 4th Series, p. 9 ( continuous p . 189) .THE GOVERNMENT OF THE UNITED STATES. 475tion or repeal. A further motive is the desire to give to such.laws the sanction of a popular vote. The practice has itsanalogies to the Swiss Referendum (secs. 656, 658, 699) . It isthe almost universal practice throughout the Union to submitconstitutional provisions to a vote of the people; and the nonconstitutional provisions which are becoming so common in ourconstitutions are virtually only ordinary laws submitted topopular sanction and so placed, along with the rest of theinstrument of which they form incongruous parts, beyond theliability of being changed otherwise than through the acquiescence of the same ultimate authority. The practice perhapsdiscovers a tendency towards devising means for making allvery important legal provisions dependent upon direct popularparticipation in the process of enactment.1098. The Objections to the practice are as obvious as they areweighty. General outlines of organization, such as the Constitution ofthe United States contains, may be made to stand without essential alteration for long periods together; but, in proportion as constitutions makeprovision for interests whose aspects must change from time to time withchanging circ*mstance , they enter the domain of such law as must besubject to constant modification and adaptation. Not only must the distinctions between constitutional and ordinary law hitherto recognized andvalued tend to be fatally obscured, but the much to be desired stability ofconstitutional provisions must in great part be sacrificed. Those constitutions which contain the largest amount of extraneous matter, which doesnot concern at all the structure or functions of government, but onlyprivate or particular interests, must of course, however carefully drawn,prove subject to most frequent change. In some of our states, accordingly, constitutions have been as often changed as important statutes.The danger is that constitution-making will become with us only a cumbrous mode of legislation.1099. In one or two of the states the Swiss Referendum hasbeen more exactly reproduced, though not, so far as I know, inconscious imitation of Swiss example. Thus the Wisconsin constitution leaves it with the people to decide whether banks shallbe established by state law or not; and the constitution of Minnesota makes certain railway laws and all appropriations fromthe internal improvement land fund of the state dependent fortheir validity upon the sanction of a popular vote.476 THE GOVERNMENT OF THE UNITED STATES.1100. The objections to the Referendum are that it assumes a discriminating judgment and a fulness of information on the part of the peopletouching questions of public policy which they do not often possess, andthat it lowers the sense of responsibility on the part of legislators.1101. Constitutional Amendments. The amendment of stateconstitutions, like the amendment of the federal Constitution, canbe effected only by elaborate, formal, and unusual processes whichare meant to hedge the fundamental law about with a greaterdignity and sanctity than attaches to any other body of legalprecepts. The theory of our whole constitutional arrangementis, that the people have not only, in establishing their constitutions, bound their agents, the governing bodies and officials ofthe states, but have also bound themselves, have bound themselves to change the fundamental rules which they have madeonly by certain formal and deliberate processes which must markthe act of change as at once solemn and fully advised.1102. In England, as we have seen (sec. 917) , constitutional amendment is not distinguishable from simple legislation . Parliament may, bysimple Act, change any, even the most fundamental, principle of government that the deliberate opinion of the nation wishes to see changed.Where the constitution consists for the most part of mere precedent, andfor the rest of Acts of Parliament or royal ordinances simply, it may bealtered as easily as precedent may be departed from. In England that isnot easily. The great conservative force there is the difficulty with whichEnglishmen abandon established courses. In France constitutionalamendment differs from ordinary legislation only in this , that the twochambers must sit together at Versailles, as a single National Assembly,when passing laws which affect the constitution ( sec. 411 ) . In Germanyconstitutional amendment differs from ordinary legislation only in thenumber of votes required for the passage of an amendment through theBundesrath, in which fourteen negative votes will defeat it ( secs. 499, 503) .In the United States, on the contrary, constitutional amendment differsfrom ordinary legislation both in formal procedure and in the politicalpowers called into action to effect it.1103. Preliminary Steps of Amendment. Legislatures, withus, cannot of themselves undertake any general revision of thefundamental law. In case a general revision of a state constitution is sought to be effected, the legislature is empowered to propose the calling of a popular convention to be chosen speciallyfor the purpose; the question whether or not such a convention!by refingsATHE GOVERNMENT OF THE UNITED STATES. 477shall be called must be submitted to the people; if they vote forits being summoned, it is elected by the usual suffrage; it meets.and undertakes the revision, and then usually submits the resultsof its labors to the popular vote, which may either accept thoseresults, or reject them and fall back upon the old constitutionalarrangements.1104. In many of the states a proposition for the calling of such a convention may be submitted to the people only if adopted by a two-thirdsvote of both houses of the legislature. The new state constitution , adoptedin South Carolina ( 1895) and in Delaware ( 1897) were not submitted tothe popular vote, but were promulgated as law by the conventions whichframed them. This method of adoption was once not uncommon; but itis now very unusual.1105. Proposal of Amendments. - Legislatures may, however,themselves propose particular amendments to constitutional provisions. In some of the states a mere majority vote suffices forthe preliminary adoption of amendments by the legislature,though in most states larger majorities, ranging from three-fifthsof a quorum to two-thirds of all the elected members of eachhouse, must be obtained. But in almost all cases popular sanction must follow: a vote of the people being made an indispensable condition precedent to the incorporation of an amendmentin the fundamental law. In many states, indeed, amendmentsproposed thus by the legislature must be adopted by two successive legislatures, besides receiving the people's sanction, beforethey can become part of the constitution. In some a popular voteintervenes between the two legislative adoptions which must behad before the desired amendment is effected. In Delawareamendments may be made without a popular vote, if adoptedby a two-thirds vote in two successive legislatures, a renewal ofthe representative house by election intervening.1106. The details of these processes differ widely in different states.In Vermont only the senate can propose amendments, and it only atintervals of ten years. In Connecticut amendments can be originatedonly by the house of representatives. Various restrictions, too, are inmany of the states put upon the number of clauses of the constitution towhich amendments can be proposed at any single legislative session , thenumber of times amendments may be submitted to the people within aspecified term of years, and the method to be followed in the popular vote478 THE GOVERNMENT OF THE UNITED STATES.when more than one amendment is submitted. In most states, too , specialpopular majorities are required for the adoption of all constitutional changes.1107. These processes of amendment have been found by no means sodifficult as they seem. The habit of inserting in state constitutions enactments not properly belonging with constitutional provisions, and whichmust be subject to frequent alteration, has led to frequent appeals to thepeople for purposes of amendment, and has served to show how easyamendment may be made. So easy and normal, indeed , have appeals tothe people in state affairs become that the constitution of New Hampshiregoes the length of providing for the submission to the vote of the peopleevery seven years of the question whether or not the state constitution shallbe revised by a convention called for the purpose, while that of Iowa commands the submission of the same question to the people every ten years,that of Michigan every sixteen years; and the constitutions of New York,Ohio, Virginia, and Maryland direct its submission every twenty years.1108. Conflict of Laws. -The plan of leaving to the states theregulation of all that portion of the law which most nearly touchesour daily interests, and which in effect determines the wholestructure of society, the whole organic action of industry andbusiness, has some very serious disadvantages: disadvantageswhich make themselves more and more emphatically felt asmodern tendencies of social and political development more andmore prevail over the old conservative forces. When the Constitution of the Union was framed the states were practically veryfar distant from one another. Difficulties of travel very greatlyrestricted intercourse between them: being, so to say, physicallyseparate, it was no inconvenience that they were also legally separate. But now that the railroad and the telegraph have madethe country small both to the traveller and to the sender of messages the states have been geographically and socially compacted.Above all, they have been commercially and industrially knit.together. State divisions, it turns out, are not natural economicdivisions; they practically constitute no boundaries at all to anydistinctly marked industrial regions. Variety and conflict oflaws, consequently, have brought not a little friction and confusion into our social and business arrangements.1109. Detrimental Effects. - At some points this diversity andmultiformity of law almost fatally affect the deepest and mostabiding interests of the national life. Above all things else, itTHE GOVERNMENT OF THE UNITED STATES. 479has touched the marriage relation, that tap-root of all socialgrowth, with a deadly corruption. Not only has the marriage tiebeen very greatly relaxed in some of the states, while in others itretains its old-time tightness, so that the conservative rules whichjealously guarded the family, as the heart of the state, promiseamid the confusion to be almost forgotten; but diversities between state and state have made possible the most scandalousprocesses of collusive divorce and fraudulent marriage.1110. It has become possible for either party to a marriage to go intoanother state, and, without acquiring there even a legal residence , obtainfrom its courts a routine divorce because the other party has not answereda summons published only in the state in which suit is instituted and therefore practically certain not to be brought to the notice of the person for whom it is intended . Under such a system a person may be divorcedwithout knowing it, and it may be possible for a man to have differentwives, or a woman different husbands, in several states at the same time.1111. In the Matter of Taxation so great a variety of law obtains among the states as to preclude in part a normal andhealthy economic development. Special taxes drive out certainemployments from some states, special exemptions artificiallyfoster them in others; and in many quarters ill-judged or illadjusted systems of taxation tend to hamper industry andexclude capital. So, too, in the matter of corporations diversityof state law works great confusion and partial disaster to theinterests of commerce and industry, not only because somestates are less careful in their creation and control of corporations than others, and so work harm to their own citizens, butalso because loosely or unwisely incorporated companies createdby the laws of one state may do business and escape properresponsibility in another state.1112. In the Criminal Law, again, variety works social damage,tending to concentrate crime where laws are lax, and to undermine by diffused percolation the very principles which socialexperience has established for the control of the vicious classes.So, too, in laws concerning debt, special exemptions or specialembarrassments of procedure here, there, and everywhere impairthat delicate instrument, credit, upon whose perfect operation theprosperity of a commercial nation depends.480 THE GOVERNMENT OF THE UNITED STATES.1113. Proposals of Reform -- . It is in view of such a state ofaffairs, such a multiformity and complexity of law touching matters which ought, for the good of the country, to be uniformlyand simply regulated throughout the Union, that various extensions of the sphere of the federal government have been proposedby sanguine reformers, who would have all interests which need.for their advancement uniform rules of law given over to the careof Congress by constitutional amendment.1114. Evils of the Case easily exaggerated. The extent ofthe legal friction and confusion complained of may, however,easily be exaggerated. It is in most cases a confusion of detailand of procedure rather than of principle or substance, and hasmore exasperations for the lawyer than for the layman. Unquestionably there is vastly more uniformity than diversity. All thestates have built up their law upon the ancient and commonfoundation of the Common Law of England, the new states borrowing their legislation in great part from the old. Nothingcould afford clearer evidence of this than the freedom with which,in the courts of nearly every state in the Union, the decisionsof the courts of the other states, and even the decisions of theEnglish courts, are cited as suggestive or illustrative, sometimes also as authoritative, precedent. Everywhere, for instance,the laws of property rest upon substantially the same bases oflegal principle, and everywhere those laws have been similarlyfreed from the burdens and inequalities of the older system fromwhich they were derived. Everywhere there is the same facilityof transfer, the same virtual abolition of all feudal characteristics of tenure, the same separation between the property interests of man and wife, the same general rules as to liens andother claims on property, the same principles of tenancy, of disposition by will, of intestate inheritance, and of dower. Everywhere, too, contracts, common carriage, sales, negotiable paper,and partnership rest upon similar principles of practically universal acceptance. We feel the conflicts, because we suffer undertheir vexations; while we fail to realize and appreciate the uniformities because they are normal and have come to seem mattersof course. It must be acknowledged, moreover, that even withinthe area of irritation there are strong corrective forces at work, aTHE GOVERNMENT OF THE UNITED STATES. 481growing moral sentiment and a fashion of imitation, promisingthe initiation and propagation of reform. As the country growssocially and politically, its tendency is to compact, to get a common thought and establish common practices. As it compacts,likenesses will be emphasized, diversities pared and worn away.1115. Louisiana, among the states, and New Mexico, among the territories, stand apart with a peculiar law of their own, unlike the law of therest of the states, because based upon the civil law of France and Spain,which is Roman law filtered through the histories of the Romance nations.Inevitably, however, the laws of these exceptional communities have approximated in some degree to the legal systems of the rest of the Union;and they will draw still closer to them in the future.1116. Interstate Law: Commerce. - In a country being thuscompacted, thus made broader than its states in its feelings andinterests, thus turned away from the merely local enterprise ofits early industrial history to the national commerce and production of the present generation, state lines must coincide with thelines of very few affairs which are not political: there must bemany calls for the adjusting weight of an authority larger thanthat of any single state. Most such interests, happily, arecommercial in their nature, and with the regulation of interstatecommerce Congress has always been charged. It was to giveCongress this power, indeed , that the great constitutional convention was called: interstate commerce was one of the chiefsources of the alarming friction between the states whichmarked that time of crisis. It is by the operation of this powerthat the great railroad systems of this country, and the endlesstelegraph lines, have come under the guardianship, and, so faras Congress has chosen, under the regulation of the federalgovernment. Federal law cannot touch agencies of commercewhich lie wholly within a single state; but there are nowadaysvery few such agencies, and the jurisdiction of Congress overcommerce, where it does exist, is exclusive of all interference bythe states. Federal law controls all navigable waters whichconstitute natural highways of interstate traffic or intercourse,whether directly or only through their connections; it extends tosuch waters, not only, but also to the control of the means bywhich commerce may cross them in its land passage, to the482 THE GOVERNMENT OF THE UNITED STATES .construction, that is, of bridges over navigable waters for thefacilitation of land traffic. It excludes every state tax orlicense law, every state regulation whatever, that in any wayaffects by way of restriction or control any movement of commerce or intercourse between the states.1117. Posts and Telegraphs. Directly supplementary to thepower of Congress over interstate commerce is its power toestablish post- offices and post-roads. This has been interpretedto bestow upon Congress the right to facilitate telegraphic intercourse between the states by taking measures to break downexclusive privileges granted by a state; and it must undoubtedlybe taken as rounding out to a perfect wholeness the control ofthe general government over the means of communicationbetween state and state.1118. Of course, too , this is a jurisdiction which must necessarily advance with lengthening strides as the movements of our already vast commerce become yearly even wider still and more rapid. It has been made,indeed, to carry also a promise even of federal ownership of the telegraphsystems of the country, and of a very much more extensive regulation ofrailway management than has yet been ventured upon. The most significant step yet taken was the creation, in 1887 , of an Interstate Commerce ·Commission charged with the prevention of unjust discriminations inrailroad rates either for freight or passage. This Commission has alreadybecome one of the most important judicial bodies of the nation, andillustrates a very important experiment in federal control (sec. 1351 ) .1119. Citizenship. - Citizenship in the United States illustrates the double character of the government. Whoever possesses citizenship at all is a citizen both of the United Statesand of the state in which he lives. He cannot be a citizen ofthe United States alone, or only of a state; he must be a citizenof both or of neither: the two parts of his citizenship cannotbe separated. The responsibilities of citizenship, too, are bothdouble and direct. Under our federal system punishment for theviolation of federal law falls directly upon individuals, as doespunishment for the violation of state law; the obligation of obedience is in both cases direct: every citizen must obey both federallaw and the law of his own state. His citizenship involves directrelations with the authorities of both parts of the government ofTHE GOVERNMENT OF THE UNITED STATES. 483the country, and connects him as immediately with the powerof the marshals of the United States as with the power of thesheriff of his own county, or the constable of his own town.1120. The population of the United States is probably less stationaryin its residence than the population of any other country in the world,and frequent changes of residence have led to a great facilitation of the transfer of citizenship from one state to another. A very brief term ofresidence in a new home in another state secures the privileges of citizenship there but in transferring his state citizenship a citizen does not affect his citizenship of the United States at all. The term of residencerequired for the acquirement of the privilege of suffrage varies from three months to two years and a half, but is in most cases one year.---1121. Elements of Confusion. A very considerable amount ofobscurity, it must be admitted, surrounds the question of citizenshipin the United States. The laws of our states have so freely extended toaliens the right to hold property, and even the right to vote after a meredeclaration of intention to become naturalized citizens (see sec. 1143) , –have, in brief, so freely endowed aliens with all the most substantial anddistinguishing privileges of citizenship, that it has become extremelydifficult to draw any clear line, any distinction not merely formal, betweencitizens and aliens. Of course if a person who is not formally naturalizedexchanges residence in a state in which he was allowed the privileges ofcitizenship for residence in a state in which those privileges are deniedhim, he can complain of no injustice or inequality. The Constitution ofthe United States commands that "the citizens of each state shall beentitled to all the privileges and immunities of citizens in the severalstates "; but only federal law admits aliens to formal citizenship , andonly formal citizenship can give to any one, wherever he may go, a rightto the privileges and immunities of citizenship. The suffrage in particularis a privilege which each state may grant upon terms of its own choosing,provided only that those terms be not inconsistent with a republican formof government ( sec. 1143) .-Thurs.1122. Naturalization . Naturalization is the name given tothe acquirement of citizenship by an alien. The power to prescribe uniform rules of naturalization rests with Congress alone,by grant of the Constitution . The states cannot make rules oftheir own in the matter, though they may, singularly and inconsistently enough, admit to the privileges of citizenship on whatterms they please (sec. 1143). The national naturalization law.requires that the person who wishes to become a citizen mustapply to a court of law in the state or territory in which he484 THE GOVERNMENT OF THE UNITED STATES.desires to exercise the rights of citizenship for formal papersdeclaring him a legal citizen; that before receiving such papershe must take oath to be an orderly and loyal citizen and mustrenounce any title of nobility he may have held; and that inorder to obtain such papers he must have lived in the UnitedStates at least five years, and in the state or territory in whichhe makes application at least one year; and at least two yearsbefore his application he must have declared in court under oathhis intention to become a naturalized citizen.1123. It is not necessary for a person who became a resident of theUnited States three years before coming of age to make such a sworn declaration of his intention to become a citizen . If a man who has madesuch sworn declaration dies before taking out his papers of naturalization ,his widow and minor children may become citizens by merely taking thenecessary oath of citizenship at the proper time. The children of personswho become naturalized, if they live in the United States, and are undertwenty-one years of age when their parents take the oath of citizenship ,become citizens by virtue of the naturalization of their parents.1124. In Germany, it will be remembered, the terms and conditionsupon which foreigners are to be admitted to citizenship are also regulatedby federal law ( sec. 557 ); while in Switzerland citizenship in its fulnesscan be conferred only by cantonal law, though naturalization is regulatedby federal provision ( sec. 662) . The European states have, however,very few of the problems of naturalization which confront and confoundus in the United States. The whole world is not coming to them as it iscoming to us.1125. Citizenship under a Confederation. The possession of anational naturalization law is one of the practical political features whichdistinguish our general government from the government of a mereconfederation. The states which compose it are the only ' citizens ' of aconfederation for the individual there is no federal citizenship; and thetransfer by an individual of his citizenship from one state to anotherwithin the confederation is as much a mere matter of international comityas if the states were not bound together by any common law.

-1126. Central Governments of the States. -- The governmentsof the states depend for their structure and powers entirely uponwritten fundamental law, upon documents which we may callpopular charters. It was, as I have said, upon the models andprecedents furnished by the governments of the thirteen originalstates that the federal government was constructed, and this wasone of the features copied: the state governments, no less dis-THE GOVERNMENT OF THE UNITED STATES. 485tinctly than the federal government, rest upon fundamental lawbased upon the explicit assent of the people or their representatives.1127. A very great uniformity of structure is observable amongthe central governments of the states in all general features. Oneof the most obvious points of resemblance between them is thecomplete separation and perfect coördination of the three greatdepartments of governmental action, the legislative, the executive, and the judicial; and these are set apart and organized underthe state constitutions with a very much greater particularity thancharacterizes the provisions of the federal constitution.-- 1128. The State Legislatures: their Powers. The state constitutions supplement the Constitution of the Union, providingfor the exercise of all powers not bestowed by the federal charter;and the legislatures of the states may be said, in general terms,to possess all law-making powers not given to Congress. But thisis by no means a complete statement of the case. State constitutions contain strict limitations of power no less than does theConstitution of the United States. Some powers there are whichare altogether withheld: which cannot under our system beexercised by any existing authority: which have been grantedneither to Congress nor to the legislatures of the states. Such,for example, are the power to grant to any person or class of persons exclusive political privileges or immunities, the power tobestow hereditary privileges or honors, and the power to abridgein any way the equal rights to life, liberty, and property. Thesemay safely be said, however, to be powers which no state legislature would in any case dream of exercising, inasmuch as theywould have to be exercised, if exercised at all, in the face of apublic opinion which would certainly refuse reëlection to anylegislator who should violate the principles of republican government so strenuously worked out in our history, from Magna Chartadown, and now so warmly cherished by all classes of our peoplethat no denial of them could stand upon our statute books a singletwelve-month. These are at most limitations put upon reaction.1129. Limitations of Length of Session, etc. There are otherlimitations, however, of a very different character contained inour state constitutions: limitations meant especially to control486 THE GOVERNMENT OF THE UNITED STATES.the action of legislatures within the sphere of their proper andundoubted powers, and unquestionably based upon a general distrust of the wisdom, if not of the honesty, of legislators. Thusour constitutions very commonly forbid all private or speciallegislation, confining legislatures to the passage of general lawsapplying uniform rules to all persons and all cases alike. Theylimit, moreover, in very many cases, the length and frequency oflegislative sessions, providing that the legislature shall convene,for instance, only once in every period of two years, and shallcontinue its biennial session for not more than a certain numberof days, except under special or exceptional conditions, whenextra sessions may be called by the governor or regular sessionsextended by a special two-thirds or three-fifths vote. Many constitutions contain, also, minute provisions concerning the conductof legislation, forbidding the introduction of bills later than suchand such a day of a limited session, prescribing the general formof bills, limiting their subject-matter to a single object each, andeven commanding the manner of their consideration.1130. Other Limitations. More than this, as we have seen,there are certain classes of legislative provisions which have beenremoved beyond the cognizance of legislatures by being put intothe constitutions themselves: such as exemptions of certain classesof property from seizure for private debt (generally called " homestead exemptions "), prohibition ' provisions, etc. The embodiment of such measures in constitutions is intended, as I have said(secs. 1096, 1097) , to put them beyond legislative interference,is a limitation of the same indirect sort as a Bill of Rights. It isusual, also, for our state constitutions to limit the power of legislatures to create corporations, by provisions which direct thepassage of general laws of incorporation to be applied in a formaladministrative manner by the courts, to which applications forincorporation are to be made.1131. The period to which the duration of legislative sessions is restricted varies, when imposed, from forty days (Colorado, Georgia) toninety days ( Maryland and Virginia) , the most common period being sixtydays. It is noteworthy that only four of the original thirteen states haveput a restriction upon the sessions of their legislatures. Eight of thesethirteen have, however, on the other hand, restricted either wholly or inTHE GOVERNMENT OF THE UNITED STATES. 487-- part the power to pass private or special legislation , the power, that is ,to make special rules for special cases or for particular individuals. It isnevertheless true that it is in the newer states , for the most part, that thestrictest and most extensive limitations of legislative power are to be found.1132. State Legislatures not Sovereign Bodies. It will thusbe seen that our state legislatures are not in any sense sovereign 'bodies. There is a certain serviceable clearness of view to be hadby regarding the state governments as, in their legal aspect, likecorporations. Their legislatures are law-making bodies actingwithin the gifts of charters, and are by these charters in mostcases very strictly circ*mscribed in their action. It is this factwhich gives so unique a place of power under our system to thecourts, the authoritative interpreters of the fundamental law towhich all legislation and all executive action must conform .1133. Legislative Organization. — In every state the legislatureconsists of two houses, a senate and house of representatives, andin most of the states the term of senators is four years, that ofrepresentatives two years, one-half of the senate being renewedevery two years at the general elections. There is no such difference in character, however, between the two houses of the statelegislatures as exists between the Senate and the House of Representatives of the United States. Connecticut, as we have seen(sec. 1071) , furnished the suggestion upon which the framers ofthe federal Constitution acted in deciding upon the basis andcharacter of representation in the two federal houses; for in theConnecticut legislature of that time one house represented thetowns, as the confederate units of the state, while the other represented the people directly. Even Connecticut has now abandoned this arrangement, however, and in almost all the statesrepresentation in both houses is based directly upon population,the only difference between the senate and house being that thesenate consists of fewer members representing larger districts.Often, for instance, each county of a state is entitled to sendseveral representatives to the lower house of the legislature, whileseveral counties are combined to form a single senatorial district.1134. Reasons for Two Houses in State Legislatures. Thereis, consequently, no such historical reason for having two houses in thestates as exists in the case of the federal government. The object of the488 THE GOVERNMENT OF THE UNITED STATES.federal arrangement is the representation of the two elements upon whichthe national government rests, namely, the popular will and a federalunion of states. The state legislatures have two houses simply for purposes of deliberateness in legislation , in order, that is, that legislationmay be filtered through the debates of two coördinate bodies, representing slightly differing constituencies, though coming both directly from thepeople, and may thus escape the taint of precipitation too apt to attachto the conclusions of a single all- powerful popular chamber. The doubleorganization represents no principle, but only an effort at prudence.1135. The reason for our having double legislatures cannot, however,be so simply explained . It is compounded of both deliberate and historical elements. Its historical grounds are sufficiently clear: the senatesof our states are lineal descendants of the councils associated with thecolonial governors, though they now represent a very different principle.The colonial councils emanated from the executive , and may be said tohave been parts of the executive, while our senates emanate from thepeople. Then, too, there was the element of deliberate imitation ofEnglish institutions. One hundred years ago England possessed theonly great free government in the world; she was, moreover, our motherland, and the statesmen who formed our constitutions at the revolutionnaturally adopted that English fashion of legislative organization whichhas since become the prevailing fashion among all liberalized governments. Possibly, too, they were influenced by more ancient example.The two greatest nations of antiquity had had double legislatures, and,because such legislatures existed in ancient as well as in modern times,it was believed that they were the only natural kind.1136. Historical Precedents. Greeks, Romans, and English alikehad at first, it is true, only a single law-making body, a senate representing the elders or nobles of the community, associated with the king, and,because of the power or rank of its members, a guiding authority in thestate. In all three nations special historical processes produced at lengthlegislatures representing the people also; popular assemblies were, on oneplan or another, coördinated with the aristocratic assembly, and presently the plan of an aristocratic chamber and a popular chamber in closeassociation appeared in full development. We copied the English chambers when they were in this stage of real coördination; before her legislature had sustained that great change, which Greece and Rome also hadwitnessed, whereby all real power virtually came to rest again with asingle body, the popular assembly.1137. Terms of Senators and Representatives. - Among the olderstates of the union there is a more noticeable variety of law as to theterms of senators and representatives than is to be found in the constitutions of the newer states. In Massachusetts and Rhode Island, for instance, the term of both senators and representatives is a single year only.THE GOVERNMENT OF THE UNITED STATES. 489In New Jersey senators are elected for three years, one-third of the senatebeing renewed every year at the election for representatives, whose termin New Jersey is but one year. A few of the states, however, both newand old, limit the term of senators to two years, the usual term of representatives; while in Louisiana representatives are given the term usuallyassigned to senators , namely, four years.1138. Names of the Houses. There is some variety among thestates as regards the name by which the lower house of the legislature is known. In New York the popular house is called " the Assembly "; inVirginia , the 'House of Delegates "; in New Jersey, the " GeneralAssembly, " - a name usually given in most of the states to the two houses taken together.661139. The Qualifications required of senators and representatives vary widely in the different states, but not in any essential point of principle. It is universally required, for example,that members of the legislature shall be citizens; it is verygenerally required that they shall be residents of the states,sometimes that they shall be residents of the districts forwhich they are elected; and it is in almost all cases requiredthat a member of the legislature shall have reached a certainage. Variety appears in these provisions only in respect ofdetails, as to the length of time citizenship or residence shallhave been acquired before election, the particular age necessary,etc. The age required varies in the case of senators fromtwenty-one to thirty years, in the case of representatives fromtwenty-one to twenty-five.1140. Legislative Procedure. The same general rules oforganization and procedure are observed in the constitutionand business both of Congress and of the state legislatures.The more numerous branch is in all cases presided over byan officer of its own election who is called the ' Speaker'; andthe senate sits under the presidency, generally, of a LieutenantGovernor, who occupies much the same place in the government of the state that the Vice-President of the United Statesoccupies in the national government. He is contingent substitute for the governor. In nineteen of the states it is requiredthat the votes of a majority, not of a quorum merely, but ofthe full number of members elected to each house shall benecessary for the passage of a bill.490 THE GOVERNMENT OF THE UNITED STATES.1141. Standing Committees. The houses of the state legislatures, too, being separated from the executive in such a wayas to be entirely deprived of its guidance, depend upon standing committees for the preliminary examination, digestion, andpreparation of their business, and allow to these committeesan almost unquestioned command of the time and the conclusions of the legislature. The state legislatures of the earlytime served as models for Congress. They and the legislaturesof the later states, made like them, have retained substantiallytheir first plan of organization, following the rules of parliamentary practice universally observed among English-speakingpeoples; and they and Congress alike have had in the mainthe same development. As they have grown larger they havegrown more dependent upon their advisory parts, their committees.1142. In several states the constitutions themselves command the reference of all bills to committees and forbid the passage of any measurewhich has not been referred and reported upon.1143. The Suffrage. The suffrage is in all the states givenby constitutional provision to male citizens twenty-one years.of age; but it does not in all the states stop there. Several ofthe states extend the privilege of voting also to every male resident of foreign birth who is twenty-one years of age and hasdeclared his intention to become a naturalized citizen; andseveral of the states grant it to every male citizen or inhabitant' of voting age. The laws of almost all the states requireresidence in the state for a certain length of time previous tothe election in which the privilege is sought to be exercised(the period varies all the way from three months to two years.and a half) , as a condition precedent to voting; most requirea certain length of residence in the county also where theprivilege is to be exercised; some a certain length of residencein the voting precinct. Many states require all voters to havepaid certain taxes; in Delaware they are required to have paida fixed registration fee; but no state except Rhode Island andSouth Carolina has a property qualification properly so-called.In South Carolina it is required that each voter shall be ableTHE GOVERNMENT OF THE UNITED STATES . 491to read and write, or, if illiterate, shall own property valued atthree hundred dollars.1144. In Connecticut, Delaware, Massachusetts, and Mississippi the suffrage is confined to those who can read the constitution or the laws of thestate. It is common, of course, throughout the country to exclude criminals, insane persons , and idiots; and in several states the privilege is withheld from those who bet on elections. In Florida betting on an electionnot only excludes from the election in connection with which the offenceis committed, but is punished, upon conviction, by entire and permanentdisfranchisem*nt. A number of states also shut out duellists. In most ofthe states a plurality vote at the polls is sufficient for election; but Vermont, Rhode Island, and Connecticut require election by a majority ofthose voting.1145. Women are accorded the privilege of voting in school electionsin a number of states, and in a still larger number they are made eligibleto be elected to school boards. Several states have extended the franchiseto them in municipal elections; and, although the constitutions of most ofthe states declare the suffrage to be restricted to males, Colorado, Wyoming, and Washington have conferred it upon women in all elections.1146. The Ballot, or voting paper, is throughout all the states theinstrument of voting, and a large majority of them have now ( 1897)adopted the so-called Australian ballot system, by which voters are secureda complete privacy in the preparation of the voting papers and in the casting of their votes when prepared. J.-نده1147. The State Courts. A very great variety exists amongthe laws of the several states regarding the constitution,functions, and relative subordination of the courts. A generalsketch of the state courts must, therefore, be made in verybroad outline. Perhaps in this department of state law, as inothers, there may be said to be, despite a bewildering varietyof detail, sufficient unity of general feature to warrant a generalized description, and to render unnecessary the unsatisfactoryexpedient of choosing the institutions of a single state as in somebroad sense typical, and describing them alone.1148. The courts of our states are in no sense organs offederal justice, as the courts of the German states are (sec.556) . They have an entirely independent standing and organization and an entirely independent jurisdiction. Their constitution and procedure are in no way affected by federal law, -except of course by way of limitation; -their sphere is a492 THE GOVERNMENT OF THE UNITED STATES .sphere apart. The series of courts in each state, therefore, iscomplete. Every state has its supreme court, as well as itsinferior tribunals, and appeals lie from the state courts to thecourts of the United States only in cases involving federal lawor in cases where the character of the parties to the suit does notgive any state court complete jurisdiction (secs. 1090, 1306) .1149. One of the most characteristic features of our statecourts is what I may call their local attachment. In most casesthe judges are not appointed by any central authority but areelected by the voters of the district or circuit in which theyhold court; they, like members of legislatures, may be said tohave constituents.' Their responsibility is thus chiefly aresponsibility to the electors, a popular rather than an officialresponsibility. The courts are held together in a commonsystem and to a common duty only by law, therefore, and notby discipline or official subordination to superior judicial authorities. The courts may be said to be local rather than centralorgans; they are integrated only in opinion, only by thecourse of appeal, the appellate authority of the higher over thelower courts in points of law.--1150. This localization of the organs of government, in their origin aswell as in their functions, is a general characteristic of American political organization , -a characteristic which appears most conspicuously in thearrangements of local government, which is, as we shall see, not so muchorganized as left to organize itself under general statutes, for whose en- forcement no central administrative machinery is provided.1151. Common Law Courts - . There are, usually, four gradesof jurisdiction in the judicial systems of the states, with fourgrades of courts corresponding. There are generally (1) Justicesof the Peace, who have jurisdiction over all petty police offencesand over civil suits for trifling sums; who conduct preliminaryhearings in cases of grave criminal offence, committing theaccused, when there is prima facie proof of guilt, for trial by ahigher court; and who are, in general terms, conservators of thepeace. They act separately and have quite lost the highjudicial estate which still belongs to the English Justices, fromwhom they take their name. Their decisions are in almost allcases subject to appeals to higher courts.THE GOVERNMENT OF THE UNITED STATES. 4931152. Mayor's courts in the towns are generally the same in rank andjurisdiction, so far as criminal cases are concerned, as the courts of Justices of the Peace.1153. ( 2) County or Municipal Courts, which hear appealsfrom Justices of the Peace and from Mayor's courts, and whoseown original jurisdiction is one step higher than that of theJustices, including civil cases involving considerable sums, andcriminal cases generally not of the gravest character.1154. Often, however, courts of this grade, especially the municipalcourts of the larger towns, are given a much higher jurisdiction and arecoördinated in some respects with courts of the next higher grade, theSuperior Courts. In New York, New Jersey , and Kentucky the countycourts retain the English name of Quarter Sessions.1155. (3) Superior Courts, which hear appeals from the countyand municipal courts, and generally from all inferior courts, andwhich are themselves courts of high original jurisdiction of themost general character in both civil and criminal cases. Theymay be said to be the general courts which give to the courts oflower grade their name of inferior. ' County and municipalcourts, as their names imply, sit only for certain small districts;but the districts over which superior courts have jurisdictionusually cover a wide area, necessitating the sitting of each suchcourt in several places in succession. In other words, superiorcourts are generally circuit courts, and in many states bear thatname.1156. Circuit courts ' is , indeed , the most generally used name forcourts of this grade, that is, for the principal courts of the state; thoughin almost as many states they are called ' district courts. ' In most of thestates these courts have special judges of their own; but in Maine andNew Hampshire they are held by the judges of the supreme court on circuit.1157. In some states civil is separated from criminal jurisdiction in thisgrade, and distinct courts are created for each. Thus in Texas there areDistrict courts for civil causes, District Criminal courts for criminal cases.In Pennsylvania courts of Quarter Sessions are the courts of general criminal jurisdiction , as in England, civil causes going to the courts of CommonPleas. Delaware has criminal courts called courts of Gaol Delivery.1158. (4) Supreme Courts, which in most of the states have nooriginal jurisdiction at all, but only appellate jurisdiction , hearing494 THE GOVERNMENT OF THE UNITED STATES.appeals in all classes of cases (except such as involve only trifling.offences or small sums of money) from the superior courts andfrom various inferior courts.1159. ( 5) In several states there are supremest courts above the ' supreme. ' Thus in New York there is a Supreme Court, which has its Appellate Division; the Appellate Division has four several parts or sectionswhich sit and hear appeals in the four judicial districts into which the stateis divided; and over all there is a Court of Appeals, a court of generalrevision. In New Jersey there is a supreme court above the circuit, whichis itself of high appellate jurisdiction , and a Court of Errors and Appealsabove the supreme; in Louisiana the order is reversed and there is asupreme court above a court of appeals; in Illinois a supreme court abovecertain district " appellate courts "; and in Kentucky a somewhat similararrangement prevailed until the Constitutional revision of 1891. In Texasthere are two coördinate supreme courts: one, called the supreme, for thehearing of civil cases only, the other, called the court of appeals , for thehearing of criminal cases and of civil cases brought up from the county courts.1160. The name ' court of appeals ' is found also in Maryland, Virginia,and West Virginia.1161. In five of the original states (New Hampshire, Massachusetts,Rhode Island, New York, New Jersey ) , and in Maine, the supremecourts have, anomalously enough, original as well as appellate jurisdiction in all cases; but in the newer states such an arrangement is neverfound. In the case of New York, however, it is hardly accurate to saythat the Supreme Court has original jurisdiction, but rather that its judgeshave, acting separately, and subject to the oversight of the several sectionsof the Appellate Division. ' (Compare sec. 1159. )"1162. In several of the larger cities of the country there are completesets of courts, reproducing the state judiciary in small. Thus in Baltimore,for example, there are city courts from the lowest grade up to a ' SupremeBench of Baltimore City. '1163. Courts of Equity.Equity ' is defined, under the legalsystems of England and the United States, as " that portion ofremedial justice which is exclusively administered by a court ofequity, as contradistinguished from that portion of remedial justice which is exclusively administered by a court of common law "(Story). In other words, it is that portion of remedial justicewhich was administered in England by the Chancellors, who were'the keepers of the king's conscience,' and from whose court, as iffrom the king's sense of justice, there issued writs from time totime for the remedy of wrongs for which the common law madeTHE GOVERNMENT OF THE UNITED STATES. 495no adequate provision (secs. 847, 1423) . The early Chancellors wereecclesiastics imbued with Roman law as it had come down throughthe medium of the canon law, and both in their hands and inthose of their lay successors of later times, who were the heirs oftheir principles and prerogatives, equity law and procedure becamea very different thing from the law and procedure of the commonlaw courts.1164. Fusion of Law and Equity. —As time has gone on equityand law have been largely fused, even in England, just as the jusgentium and the jus civile became merged in the development ofthe Roman law (secs. 265-270, 274, 280, 281); and in most of thestates of the Union the same courts exercise both equitable andcommon law jurisdiction. In several states the whole procedureeven, in both jurisdictions has been made practically identical,and law is hardly distinguishable from equity. Generally, however, the distinctive procedure at least has been preserved, andonly courts of the superior and supreme grades have been givenequitable jurisdiction , jurisdiction, that is, over cases in whichthe remedy is equitable. In Alabama, Delaware, Michigan, Mississippi, New Jersey, Tennessee, and Vermont there are stillspecial chancery courts.―1165. Equity processes of trial differ from common law processes ,outwardly, chiefly in the fact that the testimony is written instead oforal, and that decisions of fact as well as of law rest with the judgeinstead of with a jury. For its special subject-matter equity jurisdictiongenerally embraces such matters as trusts, mistakes, frauds, etc. ,hardly tangible by ordinary remedies.-

matters

1166. Probate Courts. In most of the states there are specialprobate courts, special courts, that is, charged with jurisdictionover the proof of wills, the administration of estates, the appointment of guardians, administrators, etc. , the care of the estates ofwards, and, in general of the proper disposition of the property ofpersons deceased . In some of the states, however, these functionsare left to the ordinary courts of law.1167. In England this probate jurisdiction was, from the first until avery recent date, a prerogative of the ecclesiastical courts, and in two ofour states the probate courts retain the names of the officers who exercised this function in the place of the bishop: in Georgia the court is496 THE GOVERNMENT OF THE UNITED STATES.6called the court of the Ordinary, ' in New York the ' Surrogate's ' court.In New Jersey, with a reminiscence of the same origin, it is called the'Prerogative ' court. In several states, on the other hand, it is known,by virtue of one side of its function , as the ' Orphan's ' court.-1168. Judges. The judges of most of the state courts areelected, generally by the people, in a few cases by the legislature;but in several states they are nominated by the governor and appointed by and with the advice and consent of the Senate. InNew Hampshire they are appointed by the governor by and withthe advice and consent of the Council.1169. Supreme court judges are usually elected by the people of thestate at large; circuit, district, county, municipal, and other judges by theelectors of the areas in which they serve.1170. The terms of judges range all the way from two years to a tenureduring good behavior. The constitutions of more than three- fourths ofthe states permit the removal of judges by the legislature, or by the governor at the request of the legislature. In Florida, Massachusetts, andRhode Island all judges of the higher courts hold during good behavior;in New Hampshire until seventy years of age . The length of the termvaries with the grade of the court, the tendency being to give longer termsto the judges of the higher courts .1171. The qualifications required of judges by state law arenot stringent. Only some eight or nine of the states requireby law any identification of their judges with the legal profession; and only six require ' learning in the law '; though customand public opinion invariably confine the choice of judges to professional lawyers. Generally a certain age is required of judges(varying, where there is such a requirement, from twenty-five tothirty-five years), besides, in most cases citizenship and residence.in the state or circuit. As a rule single judges hold all the courtsexcept the highest. Supreme courts have a more or less numerous'bench.'1172. The ministerial officers of the state courts, the sheriffs , aregenerally not appointed by the judges or responsible to them, butelected by the people and answerable to ' constituents,' just as thejudges themselves are. Even the clerks of the courts are oftenelected.1173. The position of sheriff thus differs very materially from theposition of a United States marshal ( sec. 1317) , the sheriff's counterpartTHE GOVERNMENT OF THE UNITED STATES. 497in the federal judicial system. The marshal is appointed by the President of the United States , and is responsible to a central authority, ispart of a centralized organization of justice . The sheriff, on the contrary, is the organ of an extremely decentralized , an almost disintegrated ,organization of justice. The bailiffs, the sheriff's deputies, are usuallythe appointees of the sheriff.1174. The State Executives. The Executives of the states arethe least distinct parts of state organization, the least susceptibleof being adequately pictured in outline, or indeed in any broadand general way. Under our system of state law the executiveofficers of a state government are neither the servants of the legislature, as in Switzerland, nor the responsible guides of the legislature, as in England, nor the real controlling authority in theexecution of the laws, as under our own federal system. TheExecutive of a state has an important representative place, as atype of the state's legal unity; it has a weighty function of superintendence, is the fountain of information, the centre and sourceof advice, the highest organ of administration to the general eye;but it cannot be said to have any place or function of guidingpower. Executive power is diffused by our law throughout thelocal organs of government; only a certain formal superintendenceremains with the authorities at the state capitals.1175. Of course this does not apply to the governor's veto power,that contains real energy, but only to executive functions proper; theseare localized , not centralized , after the extremest pattern.-1176. Not all of the states have the same central executiveofficers. All have governors; a majority of them have lieutenantgovernors; all have secretaries of state; all have treasurers;almost all have attorneys- general; and a majority, superintendents of education. Many have also auditors: eleven have comptrollers, and fifteen boards of education; four (Massachusetts,New Hampshire, Maine, and North Carolina) associate councilswith their governors.1177. For the rest, there are a great many minor officers of variousfunctions in the different states; superintendents of prisons , for instance,registrars of land offices, superintendents of labor, bureaux of agriculture,commissioners of mines, commissioners of immigration, etc. There is498 THE GOVERNMENT OF THE UNITED STATES.no uniformity between the administrations of the states as regards thesespecial offices; different states undertake different functions, new or old ,and create new, or revive old , offices accordingly.1178. The governor's term of office is in almost all of thestates either two or four years, although Massachusetts andRhode Island give their governors a term of but a single year,while New Jersey elects hers for three. The lieutenant-governor,where such an officer is elected, has the same term as the governor, and is generally required to have the same qualifications.1179. These qualifications consist, almost always, of citizenship of from two to twenty years' standing, residence within thestate of from one to ten years, and age of from twenty-five tothirty years. In Maine it is required that the governor shall bea native-born citizen.1180. The terms of the other principal state officers are usuallythe same as the term of the governor, though it is not uncommonto give to treasurers, secretaries of state, attorneys-general, andauditors a longer tenure. The qualifications required of the different officers are of the most various nature.1181. The constitutions of many of the states still exhibit the jealousyof long terms of office which was so characteristic of the extreme democratic feeling generated in the colonies by the constant friction betweenthe representatives of the people and officials who owed their offices, notto election , but to royal appointment. Seven states limit official tenureto a maximum period of seven years; Texas makes two years the maximum; and Massachusetts, Virginia, and Maryland give express constitutional sanction to rotation in office.1182. Many states effect such a limitation with reference to the tenureof the governor's office by provisions setting bounds to the reëligibilityof the governor. Thus some exclude their governors from successiveterms; others allow only a single term to any one man within a specificperiod of, say, eight years; while still others withhold reëligibility altogether.1183. Contrast between State and Federal Executives. Thefederal executive was, as we have seen (sec. 1071) , constituted inquite close accordance with the models of previous state organization; but the imitation can scarcely be said to have gone furtherthan the adoption of the suggestion that the United States shouldhave a single governmental head, a president, because the statesTHE GOVERNMENT OF THE UNITED STATES. 499had tried and approved a single presidency. For the rest, thepresident was given the character, as regards his relations withthe other officials of the federal system, rather of an English sovereign than of a state governor. Certainly the contrast betweenthe official place and power of the president and the place andpower of the state governors of the present day is a very sharpand far- reaching contrast indeed. The president of the UnitedStates is the only executive officer of the federal government whois elected; all other federal officials are appointed by him, andare responsible to him. Even the chief of them bear to him, intheory at least, only the relation of advisers; though in fact, itmust be acknowledged, they are in effect his colleagues. Of stateofficials associated with the governor it may, on the other hand,be said that both in law and in fact they are colleagues of thegovernor, in no sense his agents, or even his subordinates, exceptin formal rank and precedence. They, like himself, are electedby the people; he is in no way concerned in their choice. Nordo they serve him after election. They are not given himas advisers; they are, on the contrary, coördinated with him.North Carolina, indeed, calls her chief officers of state a ' cabinet '; but they are not dependent upon each other even in counsel,and they are quite as independent of the governor as Congress isof the president. The only means of removal to which the principal officers of the states are subject is, ordinarily, impeachment,to which the governor also is equally exposed. Both they andhe may be charged with official crimes and misdemeanors by thehouse of representatives, and tried , convicted, and removed bythe senate of the state . Their only other responsibility is to thecourts of law, to which, like other citizens, they are answerable,after removal from office, for actual breaches of law. Governor, treasurer, secretary of state, attorney-general, all stateofficers alike, serve, not other officers, but the people, who electedthem; upon the people they are dependent, not upon each other;they constitute no hierarchy, but stand upon a perfect equality.1184. In Delaware, Maryland, New Jersey, Pennsylvania, WestVirginia, and Texas the secretaries of state are appointed by thegovernor, subject to confirmation by the senate; in several states theattorney-general also is appointed; nor is it uncommon for the state500 THE GOVERNMENT OF THE UNITED STATES.superintendent of education to be an appointee of the governor; andthese facts offer apparent contradiction to the statement that the severalconstituent parts of the state executives stand always apart in completeindependence and coordination, especially when it is added that in oneor two states officers so important as the secretary of state and the attorney-general hold during the pleasure of the governor. Several of thestates empower their governors to suspend or remove subordinate officersagainst whom charges are preferred , and to institute criminal proceedingsagainst them in the courts. Maryland authorizes the summary removal ofsundry minor officials by the governor, and Michigan and New York eventhe suspension of the secretary of state or the treasurer, in case of corruption or gross misconduct, until the legislature can act; and in Delawarethe governor can remove any public officer " convicted of misbehavingwhile in office, or of any infamous crime . " But these cases constitute infact no real exceptions: for the duties of such officers, after their appointment, are prescribed by constitutional provision or by statute, not by thegovernor; and the governor may remove them, not at his whim, or formere administrative reasons, but for just cause only, and as if he acted asan officer of justice. In brief, even when appointed by him , they do notdepend upon him.ited.1185. Real Character of a State Executive.' . The governortherefore, is not the Executive '; he is but a single piece of theexecutive. There are other pieces coördinated with him overwhich he has no direct official control, and which are of lessdignity than he only because they have no power to controllegislation, as he may do by the exercise of his veto, and becausehis position is more representative, perhaps, of the state government as a whole, of the people of the state as a unit. Indeed itmay be doubted whether the governor and other principal officersof a state government can even when taken together be correctlydescribed as ' the executive,' since the actual execution of thegreat majority of the laws does not rest with them but with thelocal officers chosen by the towns and counties and bound tothe central authorities of the state by no real bonds of responsibility whatever. Throughout all the states there is a significantdistinction, a real separation, between ' state ' and ' local ' officials;local officials are not regarded, that is, as state officers, but asofficers of their districts only, responsible to constituents, not tocentral authorities. Throughout the country the sheriffs andother county officers, the county treasurers, clerks, surveyors,THE GOVERNMENT OF THE UNITED STATES. 501-commissioners, etc. , and the town and city officials also, as wellas the judges of the courts and the solicitors or district attorneyswho represent the public authority before the courts, are, almostwithout exception, chosen by the voters of limited areas, and areregarded, for the most part, as serving, not the state, but theirpart ofthe state. Minor ' state ' officers there are, minor officers,that is, who ministerially serve the central offices, and theseare often appointed by the governor; but it is exceptional for thegovernor to control the local authorities by whom the laws are infact put into actual operation. The president of the United Statesis the veritable chief and master of the official forces of the federal government; he appoints and in most cases can remove allfederal marshals, district attorneys, revenue officers, post-officeofficials. But the governor of a state occupies no such position;nor does any high ' state ' official; the central offices of a stateconstitute a system of supervision and report often, but seldoma system of control.1186. In Michigan, it is true, all officials not legislative or judicial maybe removed by the governor for just legal cause; in New York, too ,sheriffs, coroners, district attorneys, and county clerks are removable bythe same authority, and in Wisconsin sheriffs, coroners, district attorneys,and registrars of deeds; but such provisions are exceptional, and are notaccompanied by any real integration of local government by a system ofcontinuous central control. Government remains disjointed , - still lies inseparated parts. ( Compare sec. 1184.)-1187. Relations of the Local to the Central Organs of Government in the States. It is characteristic of our state organization, therefore, that the counties, townships, and cities into which the states aredivided for purposes of local government do not serve as organs of thestates exactly, but rather as independent organisms, constituted what theyare by state law, indeed, but, after being set up, left to themselves almostas entirely as if they were self-constituted . They elect their own officers ,and, except for the occasional mandates of the courts, go their own pacesin enforcing the general laws of the state.1188. We have not, therefore, local ' self-government, ' in the sense inwhich Professor Gneist has found that term to be properly used whenemployed in the light of its Teutonic history; we have, instead, separatelocal self-direction which is not the application of government, but theplay of independent action. Our local areas are not governed, in brief;they act for themselves. Self-government implies, when used in its stricthistorical meaning, that the officers of local administration are officers of502 THE GOVERNMENT OF THE UNITED STATES.the state, of the central authority, whatever may be the machinery oftheir appointment, and that their responsibility is central, instead of totheir neighbors merely. The only sense in which the local units of ourstate organizations are governed at all is this, that they act under generallaws which are made, not by themselves, but by the central legislatures ofthe states. These laws are not executed by the central executive authorities, or under their control, but only by local authorities acting in semiindependence. They are, so to say, left to run themselves.1189. The Governor. The usual duties of a state governormay be conveniently summed up under four general heads:(1) As towards the legislature, it is his duty to transmit to thehouses at each regular session, and at such other times as may berequired, full information concerning the state of the commonwealth, and to recommend to them such measures as seem tohim necessary for the public good. It is also his duty in case.of necessity for such a step, or upon the requisition of a sufficientnumber of legislators, to summon the houses to extra session.(2) He is commander-in-chief of the state militia, and as suchis bound to see, not only that foreign invasion is repelled, butalso that internal order is preserved. (3) He exercises the clemency of the state towards condemned persons, having the rightto grant pardons to persons convicted of crime, to remit finesand penalties, under certain conditions, and to remove politicaldisabilities incurred in consequence of conviction of crime;though he exercises these high prerogatives subject always toa definite responsibility to public opinion and to the laws.1190. In some states, as notably in Pennsylvania, the power of granting pardons is given to the governor, however, only in form, the sanctionof a Board of Pardons being made necessary, whose action is semi -judicial.In New Jersey there is a judicial committee on pardons; and in Connecticut the legislature alone can pardon: the governor can only reprieve untilthe end of the next session of the legislature.1191. (4) In all the states except three (Rhode Island, Ohio,North Carolina) the governor's assent is made necessary to thevalidity of all laws not passed over his dissent by a speciallegislative vote upon a second consideration made in full viewof his reasons for withholding his signature. And in RhodeIsland, Ohio, and North Carolina, though the governor has noTHE GOVERNMENT OF THE UNITED STATES. 503veto properly so-called, he can compel the reconsideration of anymeasure by the legislature.1192. All bills which the governor signs, or upon which he does nottake any action within a certain length of time, become law; those whichhe will not sign he must return to the legislature with a statement of hisobjections. Generally he must return bills which he thus rejects to thehouse in which they originated , though in Kansas he must return themalways to the house of representatives.1193. The vote by which a bill may be passed over the governor's vetovaries very widely among the states. In Connecticut a mere majoritysuffices for its second passage; in other states a three- fifths vote is required, in some a two-thirds vote; sometimes a majority of elected members (instead of a special number within a mere quorum) must concurin a second passage; and sometimes two-thirds of the elected members.In Missouri it is provided that the votes of two-thirds of the electedmembers shall be necessary in the house in which the measure originated ,while a mere majority of the other house will suffice.1194. In fourteen of the states the governor is given the power to vetoparticular items in appropriation bills; as regards all other bills hisapproval or disapproval must cover all of the measure or none of it.1195. The Secretary of State. The title Secretary of State,'borne by a conspicuous officer in each of the states, is very aptto mislead those who have studied first the English executive orthe functions of our own federal minister of foreign affairs . Thefederal Secretary of State is first of all an executive minister,only secondarily a secretary; and the five principal Secretariesof State in England are equally without prominent secretarialfunctions. They are one and all executive heads of department.1196. The federal Secretary of State is entitled to his official namechiefly by virtue of certain minor duties seldom thought of by the publicin connection with the Department of State. He has charge, for example,of the seal of the United States; he preserves the originals of all laws andof all orders, resolutions, or votes of the houses which have received theforce of law; he furnishes to Congress, besides consular and diplomaticreports, lists of passengers arrived in the United States from foreigncountries, etc.1197. The chief clerical features of the office which the five PrincipalSecretaries of State in England theoretically share ( sec . 875) would seemto be represented by the necessity of the countersignature of some one ofthem to the validity of the sign-manual.504 THE GOVERNMENT OF THE UNITED STATES.1198. The Secretaries of State in the commonwealths of ourUnion, on the contrary, can show substantial cause for holdingtheir title; the making and keeping of records is the centralduty of their office. It is usually their duty to register theofficial acts of the governor, to enroll and publish the Acts ofthe Legislature, to draw up all commissions issued to publicofficers, to keep all official bonds, to record all state titles toproperty, to keep and affix, where authorized, the seal of thecommonwealth, to preserve accurate maps and careful recordsof the boundaries of the various civil districts of the state,(the counties, townships, etc.) and to give to all who legallyapply duly attested copies of the public documents in theirkeeping. In brief, the Secretary's office is the public recordoffice.1199. Often other duties are assigned to the Secretary of State. Inone state, for instance, he is constituted Internal Improvement Commissioner; in another Surveyor-general. But such additional functionsare not necessarily characteristic of his office.1200. It is to the Secretary of State in each commonwealth that thevotes of the state's electors for President and Vice- President are returned; and it is he who transmits them to the president of the Senateto be opened in the joint session of the two houses.1201. Votes in state elections also are generally returnable to theSecretary of State's office , and the Secretary of State is very commonlyone of the state canvassers of election returns. Such duties manifestlyflow very naturally from the general duties of his office.1202. The Comptroller, or that equivalent officer, the stateAuditor, is public accountant. It is his function to examineand pass upon all claims presented against the state underexisting provisions of law; to audit the accounts of all officerscharged with the collection of the revenue of the state, filingtheir vouchers, requiring of them the necessary bonds, andcrediting them with all sums for which they present the stateTreasurer's receipt; to ensure uniformity in the assessment andcollection of the public revenue by preparing and furnishing tothe local fiscal officers the proper forms and instructions; toissue warrants for all legal disbursem*nts of money from thetreasury of the state, keeping a careful account with the statetreasurer; to submit his books and accounts at any time toTHE GOVERNMENT OF THE UNITED STATES. 505examination by the legislature, in a word, to regulate theassessment, collection , and disbursem*nt of the public moneys.1203. The State Treasurer may be said simply to keep thepublic moneys subject to the warrants of the Comptroller.Without such warrant he can pay out nothing.1204. These, manifestly, are not offices of control. The Comptroller,for example, can generally proceed against local fiscal officers throughthe local law-representatives of the state, the local states- attorneys, in theordinary courts, for the purpose of securing the necessary bonds whenthese are not promptly or properly given, or of enforcing the payment ofmoneys withheld or uncollected; and he may make test of the validity orsufficiency of official bonds by any means within his reach; but he hasnone but this indirect control, exercised through the courts over officerswho refuse bond or who neglect the forms and instructions issued to themregarding the assessment and collection of taxes. The whole machineryof control is local, not central, through courts and states-attorneys whoare themselves elected by the same persons, in town or county, by whomthe collecting officers themselves are chosen. The local fiscal officers arenot officers of the state treasury, but officers of the towns and countieswhom the state employs as its agents.-1205. The State Superintendent of Education often occupies asomewhat different position. It is frequently his prerogativeto prescribe the qualifications of teachers and the methods bywhich they are to be selected; he is required to make a thoroughinspection of the schools throughout the state; often he isgiven power to secure proper reports of school work throughspecial inspectors appointed to act instead of local superintendents whose reports are irregular or unsatisfactory. Schooladministration is recognized to require a certain degree ofcentralization of administrative authority, and so to constitutea legitimate exception to the general rules as to the constitutionof executive power in the states. Still, even the power of astate Superintendent of Education does not often go very muchbeyond supervision. The powers of district or township schooldirectors remain in most cases very absolute as regards themanagement of the schools. They are governed by statute, notby the state Superintendent.1206. Constitutional Diffusion of the Executive Power. - Theconstitutions of at least seven of the states make very frank confession of506 THE GOVERNMENT OF THE UNITED STATES.the diffusion of executive authority upon which I have dwelt as characteristic of our state system. Thus the constitution of Alabama provides thatthe executive power " shall consist of the governor, secretary of state,state treasurer, state auditor, attorney-general, and superintendent ofeducation, and the sheriff for each county. " The constitutions of Arkansas, Colorado, Illinois, Minnesota, Pennsylvania, and Texas make similarenumerations, with the exception of the sheriffs of the counties. TheFlorida constitution of 1868 provided that the governor should be "assisted by a cabinet of administrative officers " appointed by himself, subject to the confirmation of the senate; but clothed these officers withfunctions which made them in fact not assistants but colleagues .1207. The constitutions of most of the other states declare the executive power to be vested in the governor, but are hardly through with outlining his functions before they provide for the erection of executivedepartments among which the greater part of executive power shall beparcelled out; so that the arrangement is everywhere practically thatof those states which in effect declare the executive office to be ' in commission' by enumerating the officers who are to divide its duties.1208. Full Legal, but no Hierarchical, Control. This, then, isthe sum of the whole matter: the control of law, exercised through thecourts, is thorough and complete: statutes leave to no officer, either central or local, any considerable play of discretionary power: so far as possible they command every officer in every act of his administration . Butno hierarchy stands between an officer and the law. The several functions of executive power are segregated , each official, so to say, serves his own statute. So thorough is the control attempted by legislation , andso potent among us is the legal habit and conscience, the law-abidingsense, that no official control, no hierarchical organization has been deemed necessary.--LOCAL GOVERNMENT.1209. General Characteristics. The large freedom of actionand broad scope of function given to local authorities is the distinguishing characteristic of the American system of government.Law is central, in the sense of being uniform and the commandof the central legislature in each state; and its prescriptions areminute; but function and executive power are local. There is asingle comprehensive statutory plan, but a host of unassociateddeputies to carry it into effect, an infinite variety in the localapplication of its principles. General laws are given to thelocalities by state legislation, and these laws are generally characterized by a very great degree of particularity and detail ofTHE GOVERNMENT OF THE UNITED STATES . 507provision; but no central authority has executive charge of theirapplication: each locality must see to it for itself that they arecarried out.1210. Duties of Local Government. -The duties of local government include Police, Sanitation, the Care of the Poor, theSupport and Administration of Schools, the Construction andMaintenance of Roads and Bridges, the Licensing of Trades, theAssessment and Collection of Taxes, besides the Administrationof Justice in the lower grades, the maintenance of Court Housesand Jails, and every other affair that makes for the peace, convenience, comfort, and local good government of the variousand differing communities of each commonwealth. In manyplaces libraries are included among the institutions given intothe charge of the officers of local government. Local officerslook to state laws for their authority; but practically stateadministration represents only the unifying scheme of localgovernment. Local administration is the administration of thestate.1211. Local Varieties of Organization. Almost without exception the states which have been added to the original thirteen bywhom the Union was formed have derived their local institutions,whether by inheritance or by imitation, from the mother statesof the Atlantic seaboard. Wherever New England settlers havepredominated the township has taken quick rootage and had astrong growth; wherever Southern men have gone the county hasfound favor above other forms of local organization; whereverthe people from the two sections have met and mixed, as in theearly days they met and mixed in New York, New Jersey, andPennsylvania, the same combination or mixture of institutionsthat is characteristic of the middle Atlantic states is found infull prominence. But in all cases the new foundations in theWest have this common feature: they have all been in a greateror less degree artificially contrived. Towns have not grown upin the Northwest for the same reasons that led to their growthin New England, in the days when isolation was necessary andwhen isolation involved compact and complete self- government(secs. 1035-1037): they have, on the contrary, been deliberatelyconstructed in imitation of New England models. Neither have508 THE GOVERNMENT OF THE UNITED STATES .Western counties been developed by processes of pioneer agricultural expansion like those which made the irregular, and ina sense geographically natural, counties of Virginia ( secs. 1042-1044) they have, on the contrary, been geometrically laid offin the exact squares of the government survey and deliberatelyorganized after the Southern fashion because the settlers wantedto reproduce by statute the institutions which in their old homeshad been evolved by slow, unpremeditated growth. The institutions of the admitted states, in a word, were transplanted byenactment, whereas the institutions of the original states weresown by habit. It by no means follows that these newer institutions lack naturalness or vigor: in most cases they lack neither,a self- reliant race has simply readapted institutions commonto its political habit; but they do lack the individuality and thenative flavor often to be found in the institutions in whose likeness they were made.-1212. The differences of institution, then, which show themselves in the East between local government in New England,local government in the South , and local government in the central belt of Atlantic states extend also into the West. There, too,we find the three types, the township type, the county type, andthe compound type which stands between the two; but the compound type is in the West naturally the most common . The Westerner has had the sagacity to try to combine the advantages ofall the experiments tried in the older states, rejoicing in beingfettered by no hindering traditions, and profiting by being restrained by no embarrassing incapacity for politics .1213. Keeping these facts in mind, it will be possible to consider without confusion, the Township, the County, the SchoolDistrict, the Town, and the City as elements of local governmentin the United States. The different place and importance givento each of these organs in different sections may be noted as weproceed.1214. The Township: its Historical Origin. The township isentitled to be first considered in every description of local government in the United States not only because it is a primaryunit of administration, but also by reason of its importance andbecause of its ancient and distinguished lineage . It is a directTHE GOVERNMENT OF THE UNITED STATES. 509lineal descendant from the primitive communal institutions whichCæsar and Tacitus found existing in the vigor of youth amongthe peoples living in the ancient seats of our race. The NewEngland town was not an American invention; and the settlersupon the northern coasts did not adopt the town system simplybecause they were obliged to establish themselves in isolatedsettlements in a harsh climate and among hostile native tribes .We have seen (secs. 1035, 1036) that they kept together in closesettlements for religious purposes, for mutual defence, and forpurposes of trade, and that their settlements were often completely isolated by stretches of wild primeval forest; but theirform of government, or at least the talent and disposition for it,they brought with them, an inheritance of untold antiquity.Their political organization was like a spontaneous reproductionof the ancient Germanic Mark (secs. 287, 833) . In most casesthey regarded the land upon which they settled as the propertyof the community, just as their remote barbarian ancestors haddone; like those ancestors, they divided the land among familiesand individuals or worked it in common as might be decided bypublic vote in general assembly, in open folk- moot ' we may callit. This same ' town-meeting, ' as they styled it, voted the common discipline, elected the officers, and made the rules of commongovernment. Each group of colonists constituted themselves astate with a governing primary assembly. They reëstablished ,too, the old principles of folk-land. Whether they tilled theirlands in common or divided them in severalty, they had alwaysa communal domain, part of which was kept as open commonfor the general pasturage, and the rest of which was given overin parcels, from time to time, for settlement. They were inventing nothing; they were simply letting their race habits and instincts have natural play. Their methods showed signs at almostevery point of having been filtered through intervening Englishpractices; but they rested, none the less, upon original Teutonicprinciples.(1215. The exceptions to the principle of folk- land occurred where, asin the Hartford, Windsor, and Wethersfield settlements on the Connecticut, the land was held, not in common by the civil community, but incommon by a sort of corporation of joint owners under whose supervision510 THE GOVERNMENT OF THE UNITED STATES.the new colonies were established . These joint owners were quite distinctfrom the communal authorities.¹1216. Absorption of the Town in Larger Units of Government. It was towns of this primitive pattern that were drawntogether ultimately into the New England colonies of the latertime, by the processes I have already described (sec. 1038); andin becoming parts of larger organizations they lost to someextent their independence of movement, as well as in someslight degree their individuality also. In some cases, as forinstance in the coalescence of Connecticut ' and New Haven(sec. 1051) , the establishment of central state legislative controlover the towns took the shape of a mere confirmation to them oftheir old functions and privileges, and in this way fully recognized their elder and once sovereign place in the historical development of the commonwealth; but it in all cases necessarilyresulted in their virtual subordination. It led also to the creationof new areas of local government. Towns were grouped, at firstfor judicial purposes only, into counties, and the counties camein time to furnish a very convenient basis for certain administrative functions once vested exclusively in the smaller areas.Great cities, too, presently grew up to demand more complex,less simply and directly democratic, methods than those of thetowns. But no change has seriously threatened town organization with destruction . The town' is still the most characteristic and most vital element of local government in NewEngland; and it still has substantially the same officers, substantially the same functions, that it possessed at its foundationin America.1217. An influx of foreigners has in many places disturbed andimpaired the town system, and the cities, which draw to themselves sorapidly the rural population, but which are too big for the primitivemethods of town government, are powerful disintegrating elements inthe midst of the old organization; but the new adaptation and development of the township in the West, and the tendency to introduce itin some parts of the South, seem still to promise it honor and lengthof days.1 See Andrews, The River Towns of Connecticut (Johns Hopkins Studies,7th Series) .THE GOVERNMENT OF THE UNITED STATES. 5111218. Town-meeting. The sovereign authority, the motivepower, of town government is the Town-meeting, the generalassembly of all the qualified voters of the town, which hasreminded so many admiring observers of the ancient Grecianand Roman popular assemblies and of the Landsgemeinde ofSwitzerland. The regular session of this assembly is held once.a year, usually in the spring, ' but extra sessions are held fromtime to time throughout the year as occasion arises, due notice.being given both of the time of meeting and of the exactbusiness to be considered. Town-meeting elects all officers, —its regular annual session being the session for elections, anddecides every affair of local interest. It is presided over by a' Moderator ' and attended by the town officers, who must give afull account of their administration, and who must set before theMeeting a detailed statement of the sums of money needed forlocal government. These sums, if approved, are voted by theMeeting and their collection ordered, on a prescribed basis ofassessment. Everything that the officials and committees of thetown have done is subject to be criticised , everything that theyare to do is subject to be regulated by the Meeting.--1219. The Town Officers. The officers of the town are certain'Selectmen,' from three to nine in number, according to the size andneeds of the town, who constitute the general executive authorityfor all matters not otherwise assigned; a Town Clerk, who is thekeeper of the town records and registers; a Treasurer; Assessors,whose duty it is to make valuation of all property for tax assessment; a Collector of the taxes voted by the Meeting or requiredby the county and state authorities; a School Committee; and avariety of lesser officers of minor function, such as Constables,together with certain committees, such as library trustees, etc.Generally there are also overseers of the poor and surveyors ofhighways.1220. To this corps of officers all the functions of local government belong. The county authorities cannot enter their1 In Connecticut in the autumn.2 In some of the coast towns (townships) , as notably in Connecticut, theregulation of the use of the oyster beds is a very prominent question intown-meeting.512 THE GOVERNMENT OF THE UNITED STATES.domain, but must confine themselves to the judicial duties.proper to them and to such administrative matters as the laying out of inter-town roads, the issuing of certain county licenses,the maintenance of county buildings, etc. , for the due oversightof which larger areas than the town seem necessary. Countyexpenses are defrayed by taxes raised by the towns: the countyauthorities apportion such taxes, but do not lay them.1221. In Rhode Island the only county officials are those connectedwith the administration of justice.1222. The Township of the Northwest. -The town may,therefore, be said to exist in New England in its full historicalcharacter and simplicity, though much overshadowed by greatcities, and everywhere modified and partially subordinated bythe later developments of state and county. In the Northwest,whither New England emigrants have gone, it has entered another phase and taken on another character, a character whichmay perhaps foreshadow its ultimate organization, should thecountry have at any future time the uniform practices of localgovernment now dimly promised by certain incipient forces ofinstitutional interchange and imitation.1223. In the first place, the Northwestern township is morethoroughly integrated with the county than is the New Englandtownship. County and township fit together as pieces of thesame organism . In New England the township is older than thecounty, and the county is a grouping of townships for certain.purposes; in the Northwest, on the contrary, the county has inall cases preceded the township, and townships are divisions ofthe county.1224. The county preceded the township because the countyfurnishes, for our people, the natural basis of organization for ascattered agricultural population; the township came afterwards,in obedience to the habit of the New England settlers, as thenatural organization for a population which had become morenumerous and which had drawn together into closer association.1225. Its Origin. It was school organization that supplied thebeginnings of the township system in all the more newly settledportions of the country. The Western township has sprung outTHE GOVERNMENT OF THE UNITED STATES. 513of the school as the New England township of the earliest dayssprang out of the church. The government surveyor, who haseverywhere preceded final settlement in the West, has in all casesmapped out the land in regular plots of thirty-six square mileseach, which, for convenience, he called ' townships '; and in everytownship Congress has reserved at least a square mile of land(one ' section ' ) for the endowment of schools. This endowmenthad to be administered by the settlers; school organization hadto be effected; the name township had already been given tothe district so endowed; and there was, therefore, naturallyschool organization on the basis of the township. From thisthere eventually issued an equally natural growth of local political institutions.¹- 1226. Spread of Township Organization. In the newer portions of the country the development of the township has progressed almost in direct ratio with the development of localgovernment in many sections, even where population is comparatively dense, county organization has been made to sufficefor such districts as have not assumed the structure and privileges of village or city incorporation; but wherever any specialeffort has been made to perfect local rural organization for administrative purposes, the township has been accepted as the bestmodel of political association.1227. It has received its widest acceptance in such middle states asNew York and Pennsylvania, and in the great Northwestern states ofMichigan, Wisconsin, Illinois, and Minnesota. Elsewhere, in the middleWest, in Ohio, Indiana, and Kansas, for example, and in such states ofthe far West as California, it is less fully developed, and occupies a muchmore subordinate place as compared with the county. The county,indeed, may be said to be the prevalent unit of local government in California, as well as in Colorado, Oregon, Nebraska, and Nevada.-1228. Township Organization . The organization of the township outside of New England varies with its development.Where it is most vigorous there is the town-meeting, exercising powers strictly defined and circ*mscribed by statute andsomewhat less extensive than the powers of the town-meeting in1 See p. 10 of Local Government in Illinois, by Dr. Albert Shaw (JohnsHopkins Studies in Historical and Political Science , First Series) .514 THE GOVERNMENT OF THE UNITED STATES.New England, but still covering a multitude of local interests.and representing a very real control. Where it is less developedthere is no town-meeting, but instead only the processes of popular election to local office. In all cases the ' selectmen ' have disappeared: at least we find no officers bearing their name, and notofficers possessing exactly their functions. Where the townshipis most completely organized we find one or more supervisors 'standing at the front of township administration, who are clothedwith the duties of overseers of the poor, exercise oftentimes acertain control over the finances of the township, and are ingeneral function the presiding and directing authorities of theadministration.1229. In Michigan and Illinois a single supervisor presides over eachtownship; and in Michigan each supervisor is also tax assessor, whilein Illinois he is treasurer. In Wisconsin and Minnesota there arethree supervisors in each township; in Ohio three nearly equivalentofficers called ' trustees. ' In Illinois the school township, though generally coincident in area with the civil township, is not identical in organization. The officer called township treasurer is treasurer of the schoolfund.1230. Where there are several supervisors or trustees in thetownship, it is common to associate them together as a Board,and under such an arrangement they very closely resemble theNew England board of selectmen in their administrative functions. Township boards also exist under the laws of some statesin which there is but a single supervisor for each township, beingcomposed, usually, besides the supervisor, of such officers as thetown clerk and the Justices of the Peace. In Michigan such aboard has rather extensive supervisory powers; in Illinois it isa committee of audit simply.1231. The number of township officers varies with the degreeof development to which the township system has attained. InOhio, where the system is still more or less in germ, there are,besides the three trustees, no township officers save a clerk and atreasurer. In Michigan, even, where the township system is fullyaccepted, there is neither an assessor nor a collector of taxes, thesupervisor acting as assessor and the treasurer as collector. InIllinois, on the other hand, there is always a full corps of officers:THE GOVERNMENT OF THE UNITED STATES . 515supervisor, collector, assessor, clerk, commissioners of highways,justices of the peace, constables, etc., and for the school township a body of school trustees.-1232. The term of all officers except justices of the peace , road andschool commissioners, and constables is generally but a single year, as inNew England; the terms of the other officers named are often three orfour years.1233. Where there is a town-meeting the officers are elected by it;where there is no town-meeting they are chosen at the polls.1234. The Township in the Middle Atlantic States.It is reversing the historical order to speak of the townships of themiddle Atlantic states after discussing the townships of thenewer West; but it is not reversing the order of convenient exposition . The processes of formation are plainly visible in the West;in the East they are more complex and obscure, being the formations of history rather than of legislation.1235. The New York township is like the townships of Michigan and Illinois in its structure and functions; but like becauseit is an original, not because it is a copy. Over it presides asingle supervisor who is the treasurer and general financial officerof the area. It has its clerk, its assessor, its collector, its commissioners of highways, its constables, its justices of the peace. Ithas also special overseers of the poor. An annual town-meeting,under the presidency of the justices of the peace, or of the townclerk, elects all officers, passes sundry by-laws, votes taxes forschools and poor relief, and constitutes the general governingauthority.In counties containing 300,000 or more inhabitants there is a provisionfor the election of township officers at the polls.- 1236. The Pennsylvania Township. The New York townshipsystem suggested the system of the states about the lakes, andstands nearest in the order of development to the townshipof New England. The township of Pennsylvania, on the otherhand, suggests the township system of the next lower belt ofmiddle Western states. In it there is no town-meeting, but onlyan executive machinery. A board of two or three supervisors,holding for a term of three years, presides over the township, and516 THE GOVERNMENT OF THE UNITED STATES .has as its most prominent function the care of highways. For therest, there are the usual officers, with the somewhat uncommonaddition of three auditors. Where the township is charged withthe care of the poor, two special overseers are elected.1237. Origins of Local Government in the Middle States. -Local government in New York, Pennsylvania, Delaware, and most ofNew Jersey runs back, as to a common source, to the system established incolonial times by the Duke of York as proprietor. Under that system thetownship was the principal organ of local government. Its officers werecertain constables and overseers; and above the township was only anartificial Riding, ' presided over by a sheriff. Certain General Courtslevied highway and poor rates, appointed overseers of highways, etc.After the period of the Duke's proprietorship, the development of localgovernment in the several parts of his domain exhibited a considerablevariety. The township retained its importance in New York, but furthersouth, particularly in Pennsylvania, the county gained the superior place.--1238. The Township in the South. Wherever, in the South, theprinciple of local taxation for local schools has been fully recognized, there the township has begun to show itself, at least in bud.Virginia, the oldest of the southern states, and in most respectsthe type of all the rest in institutional development, for six years(1868-1874) tried the township system in its full form. But theexperiment proved unsatisfactory. The system, instead of beinggradually introduced and allowed to take a normal way of growth,was adopted whole, proved too artificial, and was very soon abolished by constitutional amendment. North Carolina and WestVirginia have adopted a township system of a very much morerudimentary sort, and with better results.1239. The County. The division of power between townshipand county can be most intelligibly discussed in connection withthe following outline of county organization. The natural historyof the county is best studied in the South, where, despite the partial adoption of township organization here and there, the countyremains the chief and almost the only organ of local order andgovernment. We have seen (secs. 1042-1044) how natural a basisof government it was for a widespread agricultural population.The county was imported into the West by Southern settlers, andalso found there at first its natural reason for existence in a similarly diffused population. New England immigration and newTHE GOVERNMENT OF THE UNITED STATES. 517conditions of industrial and social combination have created thetownship within the county in the West, as similarly altered conditions have begun to create it in the South also.1240. In all cases, it would seem, the county was originatedprimarily for judicial purposes, as an area in and for which courtswere to be held, though in such confederate colonies as Connecticutit was also in part the outgrowth of the union of different groupsof once independent towns. In the South the county became alsothe single area for the administrative organization of local government, being given the functions elsewhere divided between thecounty and smaller areas like the township. In New Englandcertain general functions of a limited character have been conferred upon it by subtraction from the townships. In the Northwest, county and townshiphave been created almost simultaneouslyand side by side, and are carefully integrated.1241. The American county was of course in the first instance a frontiercopy of the English shire; but its growth affords no analogy to the growthof its English prototype. The English shire in a great many instancestraces its history back to the time when it was a separate Saxon kingdom ,and may be said to have as natural boundaries as France; Americancounties, on the other hand, have all been deliberately laid out, ' as judicial and administrative subdivisions, and have no such independent historical standing.61242. The Southern county, which undertakes all of local administration, has a complete set of officers. At its head is asmall board of county commissioners. Acting under the general superintendence of the commissioners, there are generallya county treasurer, auditor, superintendent of roads, superintendent of education, and superintendent of the poor. On itsjudicial side, the county has its sheriff, its clerk, its ordinaryor surrogate, its coroner, and its state-attorney, the latter.generally acting for a judicial district inclusive of severalcounties. The functions of the county embrace the oversight ofeducation, the maintenance of jails and poorhouses, the construction and repair of highways, and all local matters. Countyofficers are in almost all instances elected by popular vote.der the Southern county system the sheriff is commonly alsotax-collector.Un-518 THE GOVERNMENT OF THE UNITED STATES.1243. Where the township exists there is great variety ofcounty organization, almost the only point of common likenessbeing the organization of justice. The county always has itssheriff, and generally its separate courts, with the usual coronerand clerk. The variety shows itself in the field of administrative structure. Sometimes, as in New York, Michigan, and Illinois, the county administrative authority is a board composed ofthe supervisors of all the townships; sometimes, as in Pennsylvania and Minnesota, the county authority is a board of threecommissioners. In Wisconsin the county board consists of members each of whom is chosen by two or more townships . Wherethe county is given least power, as in New England, its administrative functions hardly extend beyond the maintenance of countybuildings such as the jail and courthouse, the granting of certainlicenses, and the partial supervision of the highway system. InNew York and the Northwest the county authorities often undertake the relief of the poor, sometimes exercise an extensive control over the debt- contracting privileges of the smaller areas, oftenaudit the accounts of local officers, and supervise taxation for purposes of equalization .1244. Where townships exist, then , the division of functions may besaid to be as follows: the township is the area for the administration ofschools, for the relief of the poor ( unless by special popular vote this function be given to the county) , police , the construction and maintenance ofhighways, and sanitation; while the county is the area for the administration of justice, for the maintenance of jails , courthouses, and sometimespoorhouses, for tax equalization, and often for the exercise of certainother general supervisory powers.1245. Villages, Boroughs, Cities. Counties and townships areareas of rural organization only. With the compacting of population in great towns and cities other and more elaborate meansof organization became necessary, and a great body of constitutional and statutory law has grown up in the states concerning the incorporation of urban areas. There is no complete andgeneral municipal corporations act in any of our states such asthat under which, in England, cities of all sizes may acquire theprivileges and adopt the organization of full borough government(sec 989) the largest towns are left to depend for their incor-THE GOVERNMENT OF THE UNITED STATES. 519poration upon special acts of legislation. The large cities of thecountry consequently exhibit a great variety of political structure,and even cities in the same state often differ widely in manymaterial points of organization and function.1246. The electors or freeholders of less populous urban districts are in most of the states empowered to obtain a simple sortof urban organization and considerable urban powers, by certainuniform routine processes, from the courts of law; villages (asthey are called in New York) , boroughs (as they are styled inPennsylvania), towns (as they are sometimes designated in theSouth) , ¹ cities of the lesser grades (in states where towns are classified according to population), may usually get from the courts asof course, upon proof of the necessary population and of the consent of the freeholders or electors, the privilege of erecting themselves into municipal corporations under general acts passed forthe purpose; very much as private joint- stock companies may getleave to incorporate upon showing to the court evidence of thepossession of the necessary membership, stock, or paid-up capital.1247. The town or borough is, however, a public , not a private, corporation, receiving by delegation certain powers of government; and manystates have left with their legislatures the power to create all public corporations by special act. The incorporation of towns is not, therefore,universally governed by general statute.1248. The Authorities of urban districts thus erected intoseparate corporations succeed, generally, to all the powers oftownship officers within their area and constitute a local bodyapart; but usually the area thus incorporated does not cease tobe a part of the county in which it lies . It continues to paycounty taxes and its electors continue to take their part in thechoice of county officials. In some cases, however, cities havebeen definitely separated from the counties in which they lie.This has been the virtually uniform policy of Virginia. In othercases cities have by growth absorbed the counties in which theywere situated, as has happened, for example, by the expansion ofNew York, Philadelphia, New Orleans, and San Francisco. Baltimore and St. Louis have been made independent of county gov1 The name town when used in New England always means, not an urbandistrict, but a township.520 THE GOVERNMENT OF THE UNITED STATES.ernment and county obligations by special legal arrangement.The organization of incorporated towns is unlike that of eithercounty or township principally in this, that they have at the frontof their government a representative council which within itssphere is a law- making authority.1249. A common model of organization for the smaller urban areasis a mayor, president, or chief burgess; a small town council given extensive power of making by-laws, considerable power of taxation for localimprovements as well as for local administration, and other powers oflocal direction which quite sharply differentiate it from the merely executive boards often found in the townships and always found in the counties; a treasurer; a clerk; a collector; a street commissioner; sometimesoverseers of the poor; and generally such other minor officers as thecouncil sees fit to appoint.1250. Organization of Government in Cities . — The differencebetween the organization of these smaller urban areas and theorganization of great cities is a difference of complexity not onlybut often also a difference of kind. Cities, we have seen (sec.1162) , are often given a separate judicial organization, beingmade in effect separate judicial circuits or counties, with theirown courts, sheriffs, coroners, and state-attorneys; and are sometimes also made quite independent of the counties in whichthey lie (sec. 1248) . They are given also larger councils, withlarger powers; a larger corps of officers; and greater energy ofself-direction than other local areas possess.1251. The Council of a great city usually consists of two sections or'houses,' a board of aldermen and a board of common councilmen, differing very much as the two houses of a state legislature differ, in thenumber and size of the districts which their members represent. In mostof the cities of New York state, however, there is but a single legislativechamber, called sometimes the Board of Aldermen , sometimes the Com- mon Council.1252. These boards always constitute the law-making (or rather ordinance-making) and taxing power of the city; and always until recentyears they have been constituted overseers of administration also, bybeing given the power to control it not only by withholding moneys, butalso through direct participation in the power of appointment to the minorcity offices, all those, that is to say, not filled by popular election. Thechief officers of every city have usually been elected , but all others have,as a rule, been appointed by the mayor subject to confirmation by the-THE GOVERNMENT OF THE UNITED STATES. 521city council . The tendency of all very recent legislation with referenceto the constitution of city governments has been to concentrate executivepower, and consequently executive responsibility, in the hands of themayor, leaving to the council only its ordinance-making power and itsfunction of financial control. Some of the most recent charters have evenextended the appointing power of the mayor so as to include the mostimportant executive offices of the city administration . In her latest constitution (1894) New York has tried the experiment of giving the mayorsof her cities a suspensive veto on state legislation touching municipalmatters. Local bills are submitted to the mayors of the cities which theyaffect for their approval. But, if they do not approve, the repassage ofthe act by a mere majority in the legislature suffices to make it law,notwithstanding.Brooklyn plans---ул1253. School Administration. Wherever the public schoolexists there we find the School District the usual administrative area for educational purposes. Where the county systemprevails the county is divided into school districts; where thetownship system prevails the township is divided into schooldistricts. In every case there are district directors or trusteeswho control school administration, and usually control it soentirely as to prevent in great part the existence of anyuniform system of education for the whole state; but wherethe township system prevails there is generally more participation on the part of the people, gathered in district- meeting,in school administration, and generally a fuller power of localtaxation.1254. In New England recent years have been witnessing the disappearance of the separate school district in some states, and its absorptionby the township. Thus in Maine, in New Hampshire, and in Connecticutschool administration is being transferred from district to township officers ,and the township is being made the school area. In Massachusetts theschool district system was entirely abolished in 1882, and township schooladministration substituted. And outside New England the same substitution has here and there been made, as, for example, in Pennsylvania.-1255. In the Northwest schools usually receive supportfrom three distinct sources: from the land granted to eachtownship by the federal government; from a general state taxfor education, whose proceeds are distributed among the townships, to be further distributed by the township authorities.522 THE GOVERNMENT OF THE UNITED STATES.among the districts; and from district taxes levied by thedistrict directors. In New England there is generally stateand township taxation for the support of the schools. In theSouth, under the county system, there is state taxation only,for the most part, save in certain exceptional localities, andin the greater towns. In many cases in the Northwest theschool district is coincident in area with the civil township,though distinct and separate in organization.1256. Nowhere is there sufficient centralization of control.State superintendents or other central educational authoritiesare without real administrative powers (compare sec. 1205);county superintendents seldom have much authority; townshiptrustees or committees, as a rule, have little more than ageneral supervision and power of advice; usually the directorsof the smallest area have the greater part of the total ofadministrative authority, applying their quota of even the statetaxes according to their own discretion. The result is , varietyin the qualifications of teachers, variety in the method oftheir choice, variety in courses of study, variety in generalefficiency.1257. Taxation. The most striking feature regarding localtaxation in the United States is , the strict limitations put uponit by constitution or statute. Commonly no local authoritiescan tax beyond a certain fixed percentage of the appraisedvalue of the property of their district. Under the countysystem, requisition is made upon the officers of the counties.for the taxes voted by the legislature for state purposes, andthe county boards raise them, together with , the county taxes,upon the basis of the county assessment.Where the townshipexists, the process goes one step further: requisition is made.upon the townships for both the state and county taxes, andthe townships raise these, together with their own taxes, uponthe basis of the assessment made by their own assessors.1258. An effort is made in most of the states, however, toequalize assessments. Some county authority acts as a boardof equalization with reference to the assessments returned bythe assessors of the several townships, and above the equalization boards of the counties there is generally a state board ofTHE GOVERNMENT OF THE UNITED STATES. 523equalization, whose duty it is to harmonize and equalize, uponappeal, taxation in the several counties. Appeals always liefrom the local assessors to these boards of equalization . Thesystem is, however, only partially successful. It has provedpractically impossible, under the present system of localizedauthority, to avoid great varieties and inequalities of assessment:local officials try to cut down the shares of their districts inthe general taxes as much as possible.1259. General Remarks on Local Government. -Several featuresobservable in our systems of local government taken as a whole areworthy of remark. ( 1 ) In the first place, outside of the towns andcities, the separately incorporated urban districts, there is a markedabsence of representative, law-making bodies. Almost everywhere localofficers and boards have merely executive powers and move within narrowlimits set by elaborate statute law.(2 ) In the second place, where there are local law-making bodies, theyact under strict constitutional law: under charters, that is, possessingthus a strong resemblance, of kind, to state legislatures themselves.(3) In the third place, central control of local authorities exists onlyin the enforcement, in the regular law courts, of charters and generallaws there is nowhere any central Local Government Board with discretionary powers of restriction or permission. (Compare sec. 1009. )(4) In the fourth place, relatively to the central organs of the state,local government is, administratively, the most vital part of our system:as compared either with the federal government or with local authorities,the central governments of the states lack vitality not only, but do notseem to be holding their own in point of importance. They count formuch in legislation , but, so far, for very little in administration.Contrast withthe centralized FunSystemTHE FEDERAL Government.1260. The Constitution of the United States does not containall the rules upon which the organization of the federal government rests. It says that there shall be a Congress which shallexercise the law-making power granted to the general government; a President who shall be charged with the execution ofthe laws passed by Congress; and a Supreme Court which shallbe the highest court of the land for the determination of what islawful to be done, either by individuals, by the state governments,or by the federal authorities, under the Constitution and laws.524 THE GOVERNMENT OF THE UNITED STATES.It prescribes also in part the organization of Congress. But itdoes not command how Congress shall do its work of legislation,how the President shall be enabled to perform his great function,or by what machinery of officers and subordinate courts the Supreme Court shall be assisted in the exercise of its powers. Itleaves all detail of operation to be arranged by statute: andstatute accordingly plays an all-important part in the organization of the government.1261. The Constitution furnishes only the great foundations of thesystem. Those foundations rest upon the same firm ground of popularassent that supports the several constitutions of the states. Framed bya federal convention and adopted by representative conventions in thestates, it stands altogether apart from ordinary law both in character andsanction.1262. Amendment of the Constitution. The Constitution cannot be amended without the consent of two-thirds of Congressand three-fourths of the states. Amendments may be proposedin one of two ways: either (a) two-thirds of the members of eachhouse of Congress may agree that certain amendments are necessary; or (b) the legislatures of two-thirds of the states maypetition Congress to have a general convention called for the consideration of amendments, and such a convention, being called,may propose changes. In both cases the mode of adoption is thesame. Every change proposed must be submitted to the states,to be voted upon either by their legislatures or by state conventions called for the purpose, as Congress may determine. Anyamendment which is agreed to by three-fourths of the statesbecomes a part of the Constitution.1263. The fifteen amendments so far made to the Constitution were allproposed by Congress. No general constitutional convention has beencalled since the adjournment of the great body by which the Constitution was framed in 1787.1264. None of the written constitutions of Europe are so difficultof alteration as our own. In Germany, as we have seen (sec. 499) , a provision changing the imperial constitution passes just as an ordinary lawwould pass, the only limitation upon its passage being that fourteen negative votes in the Bundesrath will defeat it ( 14 out of 58 ) . In France(secs. 411 , 412 ) constitutional amendments pass as ordinary laws do, exceptthat they must be adopted by the two houses of the legislature acting, notTHE GOVERNMENT OF THE UNITED STATES. 525separately in Paris, but jointly at Versailles, as a National Assembly. InSwitzerland such amendments must pass both houses of the federal legislature and must also be approved, in a popular vote, by a majority of thevoters, and by a majority of the Cantons ( sec. 698) . In England thedistinction between constitutional law and statute law can hardly be saidto exist (see sec. 917) . See, also , for a further exposition of constitutional differences between modern states, Chap. XII.1265. The Federal Territory. The territory of the UnitedStates is of two different sorts: there is (a) the District of Columbia, over which the nation exercises exclusive jurisdiction asthe seat of its government, and the arsenals and dock-yards,which it has acquired by purchase, and over which the stateshave given it jurisdiction for military purposes; and (b) thegreat national property, the territories, which the federal authorities hold in trust for the nation as a seed-bed for the development of new states.Phipping??1266. The District of Columbia. It would have been inconvenient for the federal government to have no territory of itsown on which to build its public offices and legislative halls, andwhere it could be independent of local or other state regulations.The Constitution itself therefore provided that Congress shouldhave exclusive authority within any district not more than tenmiles square which any state might grant to the federal government for its own uses. Acting upon this hint, Maryland andVirginia promptly granted the necessary territorial jurisdiction,it having been decided to establish the seat of government uponthe Potomac. A part of the home-land of the federal government, thus ceded, was laid out under the name of the District ofColumbia: there the public buildings were erected, and there,after the removal of the government offices thither in 1800 , thecity of Washington grew up.1267. The first Congress of the United States met in New York City;there the first President was inaugurated, and the organization of thenew government effected. In 1790 it was determined that the federalofficers should live and Congress meet in Philadelphia ( as the ContinentalCongress had generally done) for ten years; after that, in the districtspecially set apart for the use of the federal government.1268. The creation of this federal home-plot is a feature peculiar toour own federal arrangements. Berlin is the capital of Prussia, not526 THE GOVERNMENT OF THE UNITED STATES .the exclusive seat, or in any sense the property, of the imperial government. Berne, too, is cantonal, not federal , ground . Our governmentwould have been in the same case as those of Germany and Switzerland had our federal authorities remained the guests of New York orPennsylvania.1269. The several arsenals, dock-yards, forts , and light houses establishedby the federal government in different parts of the Union are built uponland purchased by the federal government, generally of individuals. Itis the practice for the several states in which such pieces of property lieto grant to the federal government exclusive jurisdiction over them, —usually with the proviso that the jurisdiction shall lapse when the property ceases to be used for the federal purposes specified .1270. The Territories.- As the different parts of our vastnational domain have been settled it has been divided, under thedirection of Congress, into portions of various sizes, generallyabout the area of the larger states, though sometimes larger thanany state save Texas. These portions have been called, for wantof a better name, Territories, and have been given governmentsconstituted by federal statute. First they have been given governors and judges appointed by the President; then, as theirpopulation has become numerous and sufficiently settled in itsways of living, they have been given legislatures chosen by theirown people and clothed with the power to make laws subject tothe approval of Congress; finally, upon becoming still more developed, they have been granted as full law-making powers asthe states. The territorial stage of their development passed, themost important of them have one by one been brought into theUnion as states.1271. Until 1803 the only territory of the United States consisted of thelands this side the Mississippi which had belonged to the thirteen originalstates individually, and had by them been granted to the general government. In 1803 the vast tract known as Louisiana ' was bought; in 1848,by conquest, and in 1852, by negotiation, the Pacific coast lands wereacquired from Mexico; in 1846 the right of the United States to a portionof "the Oregon country was finally established , by treaty.1272. The post-offices, federal court chambers, custom houses,and other like buildings erected and owned by the general governmentin various parts of the country are held by the government upon theordinary principles of ownership, just as they might be held by a privatecorporation . Their sites are not separate federal territory.THE GOVERNMENT OF THE UNITED STATES. 5271273. Congress . As in the states, so in the federal government, the law-making power is vested in a double legislature, aCongress consisting of a Senate and a House of Representatives.Unlike the two houses of a state legislature , however, the twohouses of Congress have distinct characters: the Senate differsfrom the House not only in the number of its members, but alsoin the principle of its composition. It represents the federalprinciple upon which the government rests, for its members represent the states. The House of Representatives, on the otherhand, represents the national principle upon which also the government has now been finally established, without threat ofchange. Its members represent the people.1274. The Senate. The Senate consists of two representativesfrom each of the states of the Union. It has, therefore, the statesbeing forty-five in number (1897) , ninety members. Each senatoris elected, for a term of six years, by the legislature of the statewhich he represents; and a state legislature is legally free tochoose any one as senator who has been a citizen of the UnitedStates nine years, who has reached the age of thirty, and who isat the time of the election a resident of the state which he ischosen to represent.1275. The Constitution directed that, immediately after coming together for its first session, the Senate should divide its members, by lot,as nearly as it could into three equal groups; that the members assignedto one of these groups should vacate their seats after the expiration oftwo years, the members assigned to another after the expiration of fouryears, and the members of the third after the expiration of six years;after which arrangement had been accomplished , the term of every senatorwas to be six years as provided. It was thus brought about that one-thirdof the membership of the Senate is renewed by election every two years.The result is, that the Senate has a sort of continuous life , no oneelection year affects the seats of more than one-third of its members.1276. The Senate is, as I have said, the federal house of Congress. Its members represent the states as the constituent membersof the Union. They are not, however, in any sense delegates ofthe governments of the states. They are not subject to be instructed as to their votes, as members of the German Bundesrathare, by any state authority (sec. 501) , not even by the legislatureswhich elected them. Each senator is entitled and expected to vote528 THE GOVERNMENT OF THE UNITED STATES.according to his own individual opinion. Senators, therefore, maybe said to represent, not the governments of the states, but thepeople of the states organized as corporate bodies politic.1277. There is no rule which obliges senators from the same state tovote together, after the fashion once imperative in the Congress of our ownConfederation ( sec. 1068) , and still imperative in the German Bundesrath(sec. 501). Each senator represents his state, not in partnership, butsingly.1278. The equal representation of the states in the Senate more strictlyconforms to the federal principle than does the unequal representationcharacteristic of the German Bundesrath (sec . 501 ); but the rule observedin Germany, that the representatives of each state must vote together,must, in turn, be admitted to be more strictly consistent with the ideaof state representation than is the rule of individual voting followed inour Senate.1279. The Vice-President of the United States is president ofthe Senate. Unless the President die, this is the only functionof the Vice-President. He is not a member of the Senate; hesimply presides over its sessions. He has a vote only when thevotes of the senators are equally divided upon some question andhis vote becomes necessary for a decision. If the President dieor resign, or be removed from office, or be rendered unable "todischarge the duties and powers " of his office, the presidencydevolves on the Vice-President.1280. Organization of the Senate. The Senate makes itsown rules of procedure, the Vice- President being of course boundto administer whatever rule it adopts. Naturally the internalorganization of the body is the matter with which its rules principally concern themselves, and the most important feature ofthat organization is the division of the members of the Senateinto standing committees; into small groups, that is, to each ofwhich is entrusted the preparation of a certain part of the Senate's business. The Senate itself would not have time to lookinto the antecedents and particulars, the merits and bearings,of every matter brought before it; these committees are, therefore, constituted to act in its stead in the preliminary examination and shaping of the measures to be voted on. Wheneverany proposal is made concerning any important question, thatproposal is referred to the standing committee which has beenTHE GOVERNMENT OF THE UNITED STATES. 529commissioned to consider questions of the class to which theproposed action belongs. The committee takes the proposalunder consideration, in connection with all other pending proposals relating to the same subject, and reports to the Senatewhat it thinks ought to be done with reference to it, whetherit is advisable to take any action or not, and, if it is advisable toact, what action had best be taken.1281. Thus there is a Committee on Finance, to which all questionsaffecting the revenue are referred; a Committee on Appropriations, which advises the Senate concerning all votes for the spending of moneys; aCommittee on Railroads, which considers all railroad questions; a Committee on Foreign Affairs, which prepares for consideration all questions touching our relations with foreign governments, etc.1282. Influence of the Standing Committees - - . Its standingcommittees have a very great influence upon the action of theSenate. The Senate is naturally always inclined to listen totheir advice, for each committee necessarily knows much moreabout the subjects assigned to it for consideration than the restof the senators can know. Its committee organization may besaid to be of the essence of the legislative action of the Senate:for the leadership to which a legislative body consigns itself isof the essence of its method and must affect, not the outwardform merely, but the whole character also of its action. Underevery great system of government except our own, leadershipin legislation belongs for the most part to the ministers, to theExecutive, which stands nearest to the business of governing;it is a central, and, as evidenced by its results, extremely important characteristic of our system that our legislatures lead themselves, or, rather, that they suffer themselves to be led along theseveral lines of legislation by separate and disconnected groupsof their members.1283. The Senate and the Executive. One of the chief uses of thecommittees is to obtain information for the Senate concerning the affairsof the government. But, inasmuch as the executive branch of the government is quite separate from Congress, it is often very difficult for theSenate to find out through its committees all that it wishes to know aboutthe condition of affairs in the executive departments. The action of thetwo houses upon some questions must of course be greatly influenced , and530 THE GOVERNMENT OF THE UNITED STATES.should be greatly influenced, by what they can learn of administrativeexperience in the departments, and the Senate, as well as the House, hasthe right to ask what questions it pleases of executive officers, eitherthrough its committees or by requiring a written report to be made directlyto itself by some head of a department. Upon financial questions, for example, the Senate or its Finance Committee must constantly wish to knowthe experience of the Treasury. But it is not always easy to get legislative questions fully and correctly answered; for the officers of the government are in no way responsible to either house for their official conduct.They belong to an entirely separate and independent branch of the government only such high crimes and misdemeanors as lay them open toimpeachment expose them to the power of the houses. The committeesare, therefore, frequently prevented from doing their work of inquirywell, and the Senate has to act in the dark. Under other systems of government, as we have seen ( secs. 427 , 428, 533, et seq. , 580 , 670, 868-871,etc. ) , the ministers are always present in the legislative bodies to bequestioned and dealt with directly , face to face.1284. The President Pro Tempore. It is the practice of the Senateto make itself independent of all chances of the Vice-President's absenceby electing statedly from its own membership a president pro tempore, toact in case of the absence or disability of the Vice- President.1285. The House of Representatives. The House of Representatives represents, not the states, but the people of the United States. It represents them, however, not in the mass,but by states. Representation is apportioned among the statesseverally according to population, and no electoral district crossesany state boundary. (Compare secs. 517, 687.)- 1286. Apportionment of Representatives. Congress itself decides by law how many representatives thére shall be; it thendivides the number decided upon among the states according topopulation; after which each state is divided by its own legislature into as many districts as it is to have representatives,and the people of each of these districts are entitled to elect onemember to the House. The only limitation put by the Constitution itself upon the number of representatives is, that thereshall never be more than one for every thirty thousand inhabitants. The first House of Representatives had, by direction ofthe Constitution itself, sixty-five members, upon the proportionof one to every thirty-three thousand inhabitants. The numberhas, of course, grown, and the proportion decreased, with theTHE GOVERNMENT OF THE UNITED STATES. 531growth of population. A census is taken every ten years, andthe rule is to effect readjustments and a redistribution of representation after every census.1287. In states which send but one representative (there arenow - 1897 - seven of these) , the representative is chosen by thevoters of the whole state. In some of the other states also itsometimes happens that one or more representatives are chosenthus at large,' pending a redistribution among districts,some other reason.or for1288. At present there are three hundred and fifty-seven members inthe House, and the states are given one member for every 173,905 of theirinhabitants. In cases where a state has many thousands more than aneven number of times that many inhabitants, it is given an additionalmember to represent the balance. Thus, if it have four times 173,905inhabitants and a very large fraction over, it is given five members insteadof four only. If any state have less than 173,905, it is given one member,notwithstanding, being entitled to at least one by constitutional provision.The reason for allowing a state an extra representative when there is alarge fraction remaining over after a division of its population by thestandard number is that the apportionment of representatives is madeaccording to states, and not by an even allotment among the people ofthe country taken as a whole, and that under such a system a perfectlyequal division of representation is practically impossible. Congress makesthe most equitable arrangement practicable each time it reapportions themembership of the House upon the basis of the decennial census whichCongress directs to be taken for this purpose in pursuance of a special constitutional command.1289. Elections to the House. Any one may be chosen arepresentative who has reached the age of twenty-five years,has been a citizen of the United States for seven years, andis at the time of his election an inhabitant of the state fromwhich he is chosen. The term of a representative is two years:and two years is also the term of the whole House; for itsmembers are not chosen a section at a time, as the senators are;the whole membership of the House is renewed every secondyear. Each biennial election creates a new House.'•1290. Although the Senate has a continuous life , we speak habituallyof different Congresses, ' as if a new Congress, instead of a new Houseof Representatives merely, were chosen biennially. Thus the Congress of532 THE GOVERNMENT OF THE UNITED STATES .1895-1897 was known as the fifty-fourth Congress, because the House ofRepresentatives of that period was the fifty-fourth that had been electedsince the government was established.1291. Federal law does not determine who shall vote formembers of the House of Representatives. The Constitutionprovides, simply, that all those persons in each state who arequalified under the constitution and laws of the state to votefor members of the larger of the two houses of the state legislature may vote also for members of the House of Representatives of the United States. The franchise is regulated, therefore,entirely by state law.1292. In the fourteenth amendment to the Constitution (passed1866-1868 ) a very great pressure is, by intention at least, brought to bearupon the states to induce them to make their franchise as wide as theiradult male population. For that amendment provides that , should anystate deny to any of its male citizens who are twenty-one years of agethe privilege of voting for members of the more numerous branch of itsown legislature (and thus, by consequence, the privilege of voting forrepresentatives in Congress) , for any reason except that they have committed crime, its representation in Congress shall be curtailed in thesame proportion that the number of persons thus excluded from the franchise bears to the whole number of male citizens twenty-one years of agein the state. This provision has in practice, however, proved of littlevalue. It is practically impossible for the federal authorities to carry itsatisfactorily into effect.-1293. Organization of the House. The House, like theSenate, has its own rules, regulative of the number and duties.of its officers and of its methods of doing business; and theserules, like those of the Senate, are chiefly concerned with thecreation and the privileges of a great number of standingcommittees. The committees of the House are not, however,elected by ballot, as the committees of the Senate are; they areappointed by the presiding officer of the House, the ' Speaker ';and this power of the Speaker to appoint the committees of theHouse makes him one of the most powerful officers in the wholegovernment. For the committees of the House are even moreinfluential than those of the Senate in determining what shallbe done with reference to matters referred to them. They asa matter of fact have it in their power to control almost all theTHE GOVERNMENT OF THE UNITED STATES. 533acts of the House. The Senate, being a comparatively smallbody, has time to consider very fully the reports of its committees, and generally manages to shape its own conclusions.But the House is too large to do much debating: it must beguided by its committees or it must do nothing. It is this factwhich makes the Speaker's power of appointment so vastlyimportant. He determines who shall be on the committees, andthe committees determine what the House shall do. He nominates those who shape legislation . More than that, he shapesthe rules and determines the course of business. For he ischairman of the Committee on Rules, which has but two othermembers, whom he regards as his assistants,' and that committee guides the House quite absolutely in the use of its time.The Speaker will not ' recognize ' (that is, will not give the floorto) any member who seeks to upset the programme it has fixed.1294. The extraordinary power of the Speaker often makes his electiona very exciting part of the business of each new House: for he is alwaysselected with reference to what he will do in constituting the principalcommittees, and in shaping and administering the rules.1295. The House of Representatives is not given a president by theConstitution, as the Senate is. It elects its own presiding officer, whosename, of Speaker, ' is taken from the usage of the English House ofCommons, whose president was so called because whenever, in the olddays, the Commons went into the presence of the king for the purposeof laying some matter before him, or of answering a summons from him,their president was their spokesman or Speaker. This name is used alsoin the legislative bodies of all the English colonies, wherever, indeed,English legislative practices have been directly inherited.--1296. The House has so many standing committees that every representative is a member of one or another of them , - but many of thecommittees have little or nothing to do. Some of them, though stillregularly appointed, have no duties assigned them by the rules. One ofthe most important committees is that on Appropriations , which has chargeof the general money- spending bills introduced every year to meet theexpenses of the government, and which, by virtue of its power underthe rules to bring its reports to the consideration of the House at anytime, to the thrusting aside of whatever matter, virtually dominates theHouse by controlling its use of its time. Special appropriation bills ,which propose to provide moneys for the expenses of single departments,- as, for example, the Navy Department or the War Department,are, by a recent rule of the House, taken out of the hands of the534 THE GOVERNMENT OF THE UNITED STATES.Committee on Appropriations and given to the committees on the specialdepartments concerned. Scarcely less important than the Committee onAppropriations, though scarcely so busy as it , is the Committee on Waysand Means, which has charge of questions of taxation. It is, of course,to the appointment of such committees that the Speaker pays most attention . Through them his influence is most potent.1297. Some members of the House are considered to be entitled , because of their long service and experience in Congress, to be put onimportant committees, and on every committee there must, by imperativecustom, be representatives of both parties in the House. But these partiallimitations upon the Speaker's choice do not often seriously hamper himin exercising his preferences.1298. The House has to depend, just as the Senate does,upon its standing committees for information concerning theaffairs of the government and the policy of the executive departments, and is just as often and as much embarrassed because ofits entire exclusion from easy, informal, and regular intercoursewith the departments. They cannot advise the House unless.they are asked for their advice; and the House cannot ask fortheir advice except indirectly through its committees, or formallyby requiring written reports.1299. Acts of Congress. -In order to become a law or Act ofCongress a bill must pass both houses and receive the signatureof the President. Such is the ordinary process of legislation.But the President may withhold his signature, and in that casethe measure which he has refused to sanction must receive thevotes of two-thirds of the members of each house, given upon areconsideration, before it can go upon the statute book. ThePresident is given ten days for the consideration of each measure.If he take no action upon it within the ten days, or if withinthat period he sign it, its provisions become law; if within theten days he inform Congress by special message that he willnot sign the bill, returning it to the house in which it originatedwith a statement of his reasons for not signing it, anotherpassage of the measure by a majority of two-thirds in eachhouse is required to make it a law.1300. There are, therefore, three ways in which a bill may becomelaw: either ( a) by receiving the approval of a majority in each house, andthe signature of the President, appended within ten days after its passageTHE GOVERNMENT OF THE UNITED STATES. 535by the houses; or ( b ) by receiving the approval of a majority in eachhouse, and not being acted upon by the President within ten days afterits passage; or ( c) by receiving the approval of two- thirds of each houseafter having been refused signature by the President within ten days afterits passage by a majority in each house. If Congress adjourn before theexpiration of the ten days allowed the President to consider bills senthim, such bills lapse unless he has signed them before the adjournment.1301. Neither house can do any business (except send forabsent members or adjourn) unless a majority of its membersare present, a majority being in the case of all our legislatures,both state and federal, the necessary quorum.-1302. In the practice of some foreign legislatures the quorum is muchless than a majority of the members. In the English House of Commons,for instance, it is only forty members, although the total number of members of the House of Commons is six hundred and seventy.1303. When it is said that under certain circ*mstances a bill must bepassed by a vote of two-thirds in order to become a law, it is understoodto mean that it must be voted for by two-thirds of the members present,not necessarily by that proportion of the whole membership of the body.In the case of bills which the President refuses to sign, however, the Constitution expressly says that it cannot be made law unless a second timepassed by two-thirds of each house.1304. A bill may ' originate ' in either house, unless it be a billrelating to the raising of revenue. In that case it must originatein the House of Representatives, though the Senate may proposewhat amendments it pleases to a revenue bill, as to any otherwhich comes to it from the House.1305. If one of the houses pass a bill , and the other house amend it,the changes so proposed must be adopted by the house in which the billoriginated before it can be sent to the President and be made a law.When the two houses disagree about amendments they appoint conferencecommittees; that is to say, each house appoints a committee to consultwith a similar committee appointed by the other house, to see what canbe done towards bringing about an agreement between the two housesupon the points in dispute.mon1306. The Federal Judiciary: its Jurisdiction. The Judiciaryof the United States consists of a Supreme Court, nine CircuitCourts of Appeals, nine Circuit Courts, sixty-eight District Courts,and a Court of Claims. Its organization and functions rest morePerican536 THE GOVERNMENT OF THE UNITED STATES.than do those of either of the other branches of the general government upon statute merely, instead of upon constitutional provision. The Constitution declares that " the judicial power ofthe United States shall be vested in one supreme court, and insuch inferior courts as the Congress may, from time to time,ordain and establish," and that " the judges, both of the supremeand inferior courts, shall hold their offices during good behavior,and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance inoffice ." It provides also that the judicial power of the federalgovernment shall extend to all cases in law or equity which mayarise under the Constitution, laws, or treaties of the UnitedStates; to all cases affecting ambassadors, other public ministers,and consuls; to all admiralty and maritime cases; to controversies in which the United Stated is a party, controversies betweentwo or more states, between a state and citizens of another state(the state being the suitor), between citizens of different states,between citizens of the same state claiming lands under grantsfrom different states, and between a state or its citizens and foreign states, citizens, or subjects . And it directs that in casesaffecting ambassadors, other public ministers and consuls, and incases in which a state is a party the Supreme Court shall haveoriginal jurisdiction; while in all other cases it is to have appellate jurisdiction only, " with such exceptions, and under suchregulations, as the Congress shall make."1307. The judicial power of the federal government is thus made toembrace two distinct classes of cases: ( a ) those in which it is manifestlyproper that its authority, rather than the authority of a state, shouldcontrol, because of the nature of the questions involved for instance ,admiralty and maritime cases, navigable waters being within the exclusivejurisdiction of the federal authorities; and cases arising out of the Constitution, laws , or treaties of the United States or out of conflicting grantsmade by different states. (b) Those in which, because of the natureof the parties to the suit, the state courts could not properly be allowedjurisdiction; cases affecting, for instance, foreign ambassadors, who areaccredited to the government of the United States and with whom ouronly relations are national relations, whose privileges rest upon thesovereignty of the states they represent; or cases in which the statecourts could not have complete jurisdiction because of the residence ofTHE GOVERNMENT OF THE UNITED STATES. 537the parties; for instance, suits arising between citizens of different states.It is always open to the choice of a citizen of one state to sue a citizen ofanother state in the courts of the latter's own domicile, but the courts ofthe United States are the special forum provided for such cases.-- 1308. Power of Congress over the Judiciary. But these provisions of the Constitution leave Congress quite free to distributethe powers thus set forth among the courts for whose organizationit is to provide, and even , if it so chooses, to leave some of thementirely in abeyance. In other words, the Constitution definesthe sphere which the judicial power of the United States mayfill, while Congress determines how much of that sphere shallactually be occupied, by what courts and in what manner, subjectto what rules and limitations.1309. With regard to the organization of the judiciary Congress determines not only what courts shall be created inferior to the Supreme Court,but also of what number of judges the Supreme Court itself shall consist ,what their compensation and procedure shall be, and what their specificduties in the administration of justice. It might also determine, shouldit see fit, what qualifications should be required of occupants of thesupreme bench.1310. The Existing Federal Courts. In pursuance of thesepowers, Congress has passed the Judiciary Act of September,1789, and the Acts amendatory thereto upon which the nationaljudiciary system now rests. As at present constituted, theSupreme Court consists of a chief justice and eight associatejustices. It is required to hold annual sessions in the city ofWashington, sessions which begin on the second Monday ofeach October, any six of the justices constituting a quorum.Next below the Supreme Court are two sets of Circuit courts, calledrespectively Circuit Courts and Circuit Courts of Appeals. TheCircuit courts are, in theory, courts held in different parts of thecountry by the justices of the Supreme Court sitting separately;but in reality the business of the Supreme Court is so great inamount and so engrossing in character that the justices can byno means regularly attend the sessions of the Circuit courts . Thearea of the United States (exclusive of the territories) is dividedinto nine circuits, one justice of the Supreme Court is assigned, bythe appointment of the court itself, to each of these circuits , and538 THE GOVERNMENT OF THE UNITED STATES.in addition special circuit judges are appointed who act quiteindependently of the justices, often holding court separately, inanother part of the circuit, at the same time that the justices arethemselves holding court in the same circuits. There are atpresent ( 1897) thirteen ordinary circuit judges, the first, third,fourth, fifth, and sixth circuits having one each, and the second,seventh, eighth, and ninth two each. The nine circuits aredivided into sixty-eight districts, which, like Congressional districts, never cross state lines; and for each of these districtsthere has been established a district court. Some of the lesspopulous states constitute each a single district; others aredivided into two, while still others furnish sufficient business towarrant their being divided into three. The District courts arethe lowest courts of the federal series, and have their own separate judges. The Circuit courts sit in the several districts of eachcircuit successively, and the law requires that each justice of theSupreme Court shall sit in each district of his circuit at least onceevery two years.1311. A Court of Appeals was established by statute in1891 for each of the nine circuits, in order to relieve theSupreme Court, in some degree, of the enormous pressure ofbusiness that had at last hopelessly congested its docket. Ineach circuit a justice of the Supreme Court and two circuitjudges, or one circuit judge and one district judge, constitutethe court of appeals for the circuit, and nine additional circuitjudgeships were created by the act for this service, one foreach circuit. The Circuit Court of Appeals is the only courtin which the decisions of the Circuit and District courts can bereviewed in civil cases involving less than $1000; in cases inwhich the jurisdiction of the federal courts is based upon thecharacter or residence of the parties; in patent cases, criminalcases less than capital, revenue cases, admiralty cases. In allsuch cases, however, the Supreme Court can assume jurisdictionif it will, by certiorari or otherwise; and the Circuit Courts ofAppeals may themselves certify to that court such questions oflaw as they may deem it best it should pass upon. Appealslie from the Circuit Courts of Appeals to the Supreme Court asof right in respect of questions of jurisdiction, in respect of allTHE GOVERNMENT OF THE UNITED STATES. 539constitutional questions or questions affecting treaties, in allprize cases, and in all cases of conviction for capital " or otherwise infamous " crimes.1312. The Court of Claims was established in 1855, to relieve Congress of the necessity of determining the validity of claims against theUnited States, for the settlement or adjudication of which no provisionhad been made. It consists of a chief justice and four associates, andsits always in Washington. Pension claims, war claims, and claimsalready rejected were excluded from its jurisdiction; but all other claimsagainst the United States, which are of such a kind that they could notbe settled by an ordinary suit at law, in equity, or in admiralty ( if theUnited States were suable like an individual) are referred to it. In someinstances it is authorized to enter judgment; in others it can only find thefacts; but in either case the claimant must wait for an appropriation byCongress for the satisfaction of his claim.1313. The Court of Private Land Claims was established in 1891 ,to relieve Congress of the decision of various claims to lands lying withinthe territory derived by the United States from Mexico in cases where theclaims were made by virtue of such Mexican or Spanish grants , concessions , warrants, or surveys as the United States is bound to recognizeand confirm by reason of the terms of the treaties of cession by Mexicoto the United States, excluding, of course, such claims as have alreadybeen confirmed or finally disallowed by act of Congress or otherwise.The states within which such lands may lie are New Mexico, Arizona,Utah, Nevada, Colorado, and Wyoming. The court consists , like theCourt of Claims, of one chief justice and four associates.1314. The Division of Jurisdiction between the Circuit and Districtcourts is effected by act of Congress; and, inasmuch as Congress has notseen fit to vest in the courts complete jurisdiction over all cases arisingunder the Constitution , laws, and treaties of the United States, but hasgiven to each court power in certain specified cases, and left the rest inabeyance, it would be impossible to give in brief compass a detailedaccount of the jurisdiction of the several courts. It must suffice for present purposes to say, that the District courts are given cognizance of allordinary civil cases falling within the federal jurisdiction ( though if thesum involved exceed $2000 the suit may be brought in the Circuit Court);of all common law suits brought by the United States, all torts underinternational law or the treaties of the United States, suits against consuls or vice consuls, land condemnations, and all cases brought under thecivil rights laws; and that they have exclusive original jurisdiction inpostal law cases , prize cases, admiralty and maritime cases, and suitsagainst the United States for money claims not exceeding $1000 . TheCircuit courts, on their part, are given jurisdiction in civil cases where the540 THE GOVERNMENT OF THE UNITED STATES.sum involved exceeds $2000 , in cases concerning patents, copyrights, orthe revenue, in cases brought by the United States against nationalbanks, in cases where the rights of citizens are asserted against statelaws, and in certain enumerated cases of claims in law or equity againstthe United States. No pecuniary limit to appeals from District or Circuitcourts to a Circuit Court of Appeals is mentioned in the act of 1891 .In the trial of crimes punishable by federal law the jurisdiction of theDistrict and Circuit courts is concurrent except in capital cases, overwhich the Circuit courts have exclusive jurisdiction.1315. All Judges of the United States are appointed by thePresident, with and by the consent and advice of the Senate,to serve during good behavior. There are in all sixty-eightfederal judicial districts, and for each of these, as a rule, aspecial district judge is appointed, though in large, thinlypopulated sections of the country it has been customary to haveone judge hold court in several districts. Thus at present(1897) there are but sixty-five district judges.1316. Federal judges of the inferior courts are, so to say, interchange- able. When necessary, a district judge can go into another district thanhis own and either aid or replace the district judge there. A district judgemay also, when it is necessary for the despatch of business , sit as circuitjudge; and a circuit judge may, in his turn , upon occasion hold District court. This seems the less anomalous when it is remembered that theearliest arrangement was, for the district judges to hold Circuit courtalways in the absence of the justices of the Supreme Court from circuit, orin conjunction with them, and that special circuit judges were appointed only because of the necessity for more judges consequent upon a rapidincrease of federal judicial business.1317. The District Attorney and the Marshal.Almost everydistrict has its own federal district attorney and its own UnitedStates marshal, both of whom are appointed by the President.It is the duty of the federal district attorney to prosecute alloffenders against the criminal laws of the United States, toconduct all civil cases instituted in his district in behalf ofthe United States, and to appear for the defence in all casesinstituted against the United States; to appear in defence ofrevenue officers of the United States where they are sued forillegal action, etc. The marshal is the ministerial officer ofthe federal Circuit and District courts. He executes all theirTHE GOVERNMENT OF THE UNITED STATES. 541orders and processes, arrests and keeps all prisoners chargedwith criminal violation of federal law, etc., and has withineach state the same powers, within the scope of United Stateslaw, that the sheriff of that state has under the laws of thestate. He is the federal sheriff.1318. The orders and processes of a state court are binding and operative only within the state to which the court belongs; the orders andprocesses of United States courts, on the contrary, are binding andoperative over the entire Union.1319. The Courts of the District of Columbia and of the territories are courts of the United States, but they are not federal courts; theybear, so far as their jurisdiction is concerned, the character of state andfederal courts united . The only laws of the territories and of the Districtof Columbia are laws of the United States, inasmuch as the legislatures ofthe territories act under statutory grant from Congress. The territoriallegislatures are, so to say, commissioned by Congress; and the laws whichthey pass are administered by judges appointed by the President.1320. The territorial courts and the courts of the District of Columbiado not come within the view of the Constitution at all . With reference tothem Congress acts under no limitations of power whatever. The ruleof tenure during good behavior, for example, which applies to all judgesof the United States appointed under the Constitution , does not apply tojudges of the territories or of the District of Columbia. The term of office of territorial judges is fixed at four years . The federal courts sitting in the states, and the United States courts established in the territories, ought not to be thought of as parts of the same system , althoughthe Supreme Court is the highest tribunal of appeal for both.1321. The procedure of a federal court follows, as a rule, theprocedure of the courts of the state in which it is sitting; andstate law is applied by the courts of the United States in all matters not touched by federal enactment. Juries are constituted,testimony taken, argument heard, etc. , for the most part, according to the practice of the state courts; so that, so far as possible,both as regards the outward forms observed and the principlesapplied, a federal court is domestic, not foreign, to the state inwhich it acts.1 Congress early enacted that the people of the District of Columbia shouldcontinue to live under the laws which had previously had force in the Districtbefore its cession to the federal government.542 THE GOVERNMENT OF THE UNITED STATES.•1322. It is not within the privilege of Congress to delegate to thecourts of the states the functions of courts of the United States; for theConstitution distinctly provides that, besides the Supreme Court, thereshall be no court authorized to exercise the judicial powers of the UnitedStates except such as Congress " may, from time to time, ordain andestablish. " The adoption of state courts by Congress is excluded by plainimplication. A very interesting contrast is thus established between thefederal judicial system of the United States and the federal judicial systems of Germany and Switzerland ( secs. 556 , 703, 704) .1323. The Federal Executive. "The executive power, " saysthe Constitution, " shall be vested in a President of the UnitedStates of America," who " shall hold his office during a term offour years." Of course it is impossible for one man actually toexercise the whole executive power. The President is assistedby numerous heads of departments to whom falls so large a partof the actual duties of administration that it has become substantially correct to describe the President as simply presiding overand controlling by a general oversight the execution of the laws;which is doubtless all that the sagacious framers of the Constitution expected. The Vice-President has no part in the executivefunction. He is the President's substitute, and is chosen at thesame time and in the same manner that the President is chosen.1324. Election of a President. The choice is not direct bythe people, but indirect, through electors chosen by the people.In each state there are elected as many electors as the state hasrepresentatives and senators in Congress, the " electoral vote "of each state being thus equal to its total representation in Congress.1325. The electors are voted for on the Tuesday following the firstMonday of November in the year which immediately precedes the expiration of a presidential term . They assemble in the several state capitals tocast their votes on the second Monday of the January following. Theirvotes are counted in the houses of Congress sitting in joint session onthe second Wednesday of the following February. The President isinaugurated on the fourth of March.1326. Practical Operation of the Plan: the Party Conventions .-——The original theory of this arrangement was that each electorwas really to exercise an independent choice in the votes whichhe cast, voting for the men whom his own judgment had selectedTHE GOVERNMENT OF THE UNITED STATES . 543for the posts of President and Vice- President. In fact, however,the electors only register party decisions made during the previous summer in national conventions. Each party holds duringthat summer a great convention composed of party delegates fromall parts of the Union, and nominates the candidates of its choice.for the presidency and vice- presidency. The electors, again, are,in their turn, chosen according to the nominations of party conventions in the several states; and the party which gains themost electors in the November elections puts its candidates intooffice through their votes, which are cast in obedience to the willof the party conventions as a matter of course. The party conventions, of which the constitution knows nothing, are in fact byfar the most important part of the machinery of election.1327. Qualifications for the Office of President.except a natural-born citizen, or a citizen of the United States atthe time of the adoption of this constitution shall be eligible tothe office of president; neither shall any person be eligible tothat office who shall not have attained to the age of thirty-fiveyears, and been fourteen years a resident within the UnitedStates."1 In respect of age there is here only a slight advanceupon the qualifications required of a senator; in respect ofcitizenship it is very much more rigorous than in the case ofmembers of Congress."No person,1328. It is provided by the Constitution that the compensation received by judges of the United States shall not be diminished during theirterms of office; concerning the President, whose tenure of office is muchbriefer, it is provided that his compensation shall neither be diminishednor increased during his term.1329. Duties and Powers of the President. -It is the dutyof the President to see that the laws of the United States arefaithfully executed; he is made commander-in-chief of the armyand navy of the United States, and of the militia of the severalstates when called into the actual service of the United States;he is to regulate the foreign relations of the country, receivingall foreign ministers and being authorized to make treaties withthe assent of two-thirds of the Senate; he is to appoint and com1 Constitution, Art. II. , sec. i . , par. 5.544 THE GOVERNMENT OF THE UNITED STATES.mission all officers of the federal government; and he may grantreprieves and pardons. The Constitution makes all his appointments subject to confirmation by the Senate; but it also givesCongress the power to remove from the superintending view ofthe Senate the filling of all inferior official positions, by vestingthe appointment of such subordinate officers as it thinks properin the President alone, in the courts of law, or in the heads ofdepartments. As a matter of fact, legislation has relieved theSenate of the supervision of the vast majority of executiveappointments. The confirmation of the Senate is still necessary to the appointment of ambassadors, other public ministers,and consuls, of judges of the courts of the United States,of the chief military, naval, and departmental officials, of theprincipal post-office and customs officers, of all the moreimportant servants of the general government: but these constitute only a minority of all the persons receiving executiveappointment. The majority are appointed without legislativeoversight.-1330. The unfortunate, the demoralizing influences which have beenallowed to determine executive appointments since President Jackson'stime have affected appointments made subject to the Senate's confirmation hardly less than those made without its coöperation; senatorialscrutiny has not proved effectual for securing the proper constitution ofthe public service. Indeed, the " courtesy of the Senate, " —the so-called" courtesy " by which senators allow appointments in the several statesto be regulated by the preference of the senators of the predominantparty from the states concerned, has frequently threatened to add to theimproper motives of the Executive the equally improper motives of theSenate.1331. Reform of Methods of Appointment to Federal Offices. —The attempts which have been made in recent years to reformby law the system of appointments have not been directedtowards the higher offices filled with the consent of the Senate,but only towards those inferior offices which are filled by thesingle authority of the President or of the heads of the executivedepartments; have touched in their results, indeed, only the lessimportant even among those offices. The Act which became lawin June, 1883, and which is known as the " Pendleton Act," mayTHE GOVERNMENT OF THE UNITED STATES. 545be said to cover only employees ': it does not affect any personreally in authority, though it does affect a large body of federalservants. It provides, in brief, for the appointment by the President, by and with the advice and consent of the Senate, of a CivilService Commission consisting of three persons, not more thantwo of whom shall be adherents of the same political party,under whose recommendation as representatives of the President,selections shall be made for the lower grades of the federal service upon the basis of competitive examination. It forbids thesolicitation of money from employees of the government forpolitical uses, and all active party service on the part of membersof the civil administration. It endeavors, in short, to " take thecivil service out of politics."1332. The carrying out of those portions of the Act which relate to themethod of choosing public officers is , however, almost entirely subject tothe pleasure of the President. The Constitution vests in him the powerof appointment, subject to no limitation except the possible advice andconsent of the Senate. Any Act which assumes to prescribe the mannerin which the President shall make his choice of public servants must,therefore, be merely advisory. The President may accept its directionsor not as he pleases. The only force that can hold him to the observanceof its principle is the force of public opinion.1333. The Presidential Succession. — In case of the removal, death,resignation, or disability of both the President and Vice- President, theoffice of President is to be filled ad interim by the Secretary of State, or, if hecannot act, by the Secretary of the Treasury, or, in case he cannot act, bythe Secretary of War; and so on, in succession, by the Attorney- General,the Postmaster- General, the Secretary of the Navy, or the Secretary of theInterior. None of these officers can act, however, unless he have thequalifications as to age, citizenship, and residence required by the Constitution of occupants of the presidential chair. Until this arrangement wasmade, by act of Congress in 1886, the succession ' passed first to thepresident pro tempore of the Senate, and, failing him, to the Speaker ofthe House of Representatives. This was found inconvenient becausethere are intervals now and again when there is neither a president protempore of the Senate nor a Speaker of the House. These officers, moreover, are by no means always of the same political party as the Presidentand Vice-President. Some doubt was felt, too, as to whether they were' officers ' within the meaning of the Constitution , in the clause in whichCongress is authorized to designate the officers ' upon whom in such casesthe presidential office was to devolve.546 THE GOVERNMENT OF THE UNITED STATES .1334. Relations of the Executive to Congress. The only provisions contained in the Constitution concerning the relation ofthe President to Congress are these: that " he shall, from timeto time, give to the congress information of the state of theunion, and recommend to their consideration such measures as heshall judge necessary and expedient "; and that "he may, onextraordinary occasions, convene both houses, or either of them, "in extra session, " and, in case of disagreement between them,with respect to the time of adjournment, he may adjourn themto such time as he shall think proper," (Art. II . , sec. iii) . Hispower to inform Congress concerning the state of the union andto recommend to it the passage of measures is exercised only inthe sending of annual and special written messages.'1335. Washington and John Adams interpreted this clause to mean thatthey might address Congress in person, as the sovereign in England maydo: and their annual communications to Congress were spoken addresses.But Jefferson, the third President, being an ineffective speaker, this habitwas discontinued and the fashion of written messages was inauguratedand firmly established . (Compare sec . 861. ) Possibly, had the Presidentnot so closed the matter against new adjustments, this clause of the Constitution might legitimately have been made the foundation for a muchmore habitual and informal, and yet at the same time much more publicand responsible, interchange of opinion between the Executive and Congress. Having been interpreted , however, to exclude the President fromany but the most formal and ineffectual utterance of advice, our federalexecutive and legislature have been shut off from coöperation and mutualconfidence to an extent to which no other modern system furnishes aparallel. In all other modern governments the heads of the administrativedepartments are given the right to sit in the legislative body and to takepart in its proceedings. The legislature and executive are thus associatedin such a way that the ministers of state can lead the houses withoutdictating to them, and the ministers themselves be controlled withoutbeing misunderstood , in such a way that the two parts of the government which should be most closely coördinated, the part, namely, bywhich the laws are made and the part by which the laws are executed,may be kept in close harmony and intimate coöperation, with the resultof giving coherence to the action of the one and energy to the action ofthe other.1336. The Executive Departments. - The Constitution doesnot explicitly provide for the creation of executive departments,THE GOVERNMENT OF THE UNITED STATES. 547but it takes it for granted that such departments will be created.Thus it says (Art. II. , sec. ii. , par. 1, 2) that the President " may require the opinion , in writing, of the principal officer in each of theexecutive departments, upon any subject relating to the duties oftheir respective offices, " and that Congress may vest the appointment of such inferior officers as it may see fit "in the heads ofdepartments. " The executive departments consequently owe theircreation and organization to statute only.1337. The first Congress erected three such departments, namely,the departments of State, of the Treasury, and of War; providing,besides, for the creation and exercise of the office of AttorneyGeneral, but not erecting a Department of Justice. In 1798 themanagement of the navy, which had at first been included in theduties of the War Department, was intrusted to a special Department of the Navy; in 1829 the post-office, which had been a subdivision of the Treasury, was created an independent Department;and in 1849 a Department of the Interior was organized to receivea miscellany of functions not easy to classify, except in the feature of not belonging properly within any department previouslycreated. In 1870 the Attorney- General was put at the head of aregularly constituted Department of Justice; and in 1889 theDepartment of Agriculture, which had existed as a subordinate.executive bureau since 1862, was given full standing under aSecretary of ' cabinet ' rank.A character like that of the Department of the Interior, it is interestingto remark, may be attributed to some corresponding department, bearingeither this name or a name of like significance, in almost every othermodern government. There is everywhere some department of state toreceive functions not otherwise specially disposed of.1338. We have, thus, at present, eight executive departments,viz. (1 ) A Department of State, which is what would be called inmost other governments our " foreign office," having charge of allthe relations of the United States with foreign countries.1339. (2) A Department of the Treasury, which is the financialagency of the government, and whose functions cover the collection of the public revenues accruing through the customs dutiesand the internal revenue taxes, their safe keeping and theirdisbursem*nt in accordance with the appropriations from time to548 THE GOVERNMENT OF THE UNITED STATES.time made by Congress; the auditing of the accounts of all departments; the supervision and regulation of the national banksand of the currency of the United States; the coinage of money;and the collection of certain industrial and other statistics. ThisDepartment, therefore, contains within it the treasury and comptrolling functions which in the states are separated.1340. To this Department is attached also the Bureau of Printing andEngraving, by which all the printing of the paper currency, bonds, andrevenue stamps of the government is done. The Treasury Departmenthas also charge of the Coast and Geodetic Survey , of marine hospitals, themaintenance of lighthouses, and of the Life Saving Service.1341. (3) A Department of War, which has charge of the military forces and defences of the Union. It has charge of theMilitary Academy at West Point, and supervision of the variousmilitary schools to which Congress gives aid.1342. (4) A Department of the Navy, which has charge of thenaval forces of the general government; and which has charge ofthe Naval Academy at Annapolis and the Naval War College atNewport.1343. (5 ) A Department of Justice, from which emanates all thelegal advice of which the federal authorities stand in need at anytime, and to which is intrusted the supervision of the conduct ofall litigation in which the United States may be concerned. Toit are subordinate all the marshals and district attorneys of theUnited States, all ministerial, non-judicial law officers, that is,in the service of the government. It may be compendiously described as the lawyer force of the government. It is presided overby an Attorney-General, all the other departments, except the PostOffice, being under ' Secretaries.'1344. (6) A Post - office Department, under a Postmaster-General, which is charged with the carrying and delivery of lettersand parcels, with the transmission of money by means of certain' money orders ' issued by the Department, or under cover of acareful system of registration, and with making the proper postalarrangements with foreign countries.1345. These arrangements with foreign countries may be made withoutthe full formalities of treaty, the consent of the President alone beingnecessary for the ratification of international agreements made by theTHE GOVERNMENT OF THE UNITED STATES. 549Postmaster- General for the facilitation of the functions of the Department. The United States is a member of the Universal Postal Union, towhich most of the civilized countries of the world belong. The centraloffice of this Union is under the management of the Swiss administration.Its administrative expenses are defrayed by contribution of the variousgovernments belonging to the Union.1346. (7) A Department of the Interior, which has charge (i. ) Ofthe taking of the Census, as from time to time ordered by Congress in accordance with the provision of the Constitution (Art. I. ,sec. i . , par. 3) which makes it the duty of Congress to have a census taken every ten years as a basis for the redistribution of representation in the House of Representatives among the severalstates; (ii . ) Of the management of the public lands (General LandOffice); (iii. ) Of the government's dealings with the Indians, afunction which is exercised through a special Commissioner ofIndian Affairs in Washington and various agencies established indifferent parts of the Indian country.1347. It is through this Indian Bureau, for example, that all laws concerning the settlement, assistance, or supervision of the tribes are administered, as well as all laws concerning the payment of claims made uponthe federal government for compensation for depredations committedby the Indians, and laws touching the distribution and tenure of landamong the Indians.1348. (iv. ) Of the paying of pensions and the distribution ofbounty lands, a function which it exercises through a specialCommissioner of Pensions; (v. ) Of the issuing and recording ofpatents and the preservation of the models of all machinespatented. For the performance of these duties there is a PatentOffice. (vi . ) Of the keeping and distribution of all public documents (Superintendent of Public Documents); (vii . ) Of the auditing of the accounts of certain railway companies, to which theUnited States government has granted loans or subsidies, andthe enforcing of the laws passed by Congress with reference tosuch roads (Office of the Commissioner of Railroads); (viii. )Of the collection of statistical and other information concerningeducation, and the diffusion of the information so collected forthe purpose of aiding the advance and systematization of education throughout the country (The Office of Education); (ix. ) Ofthe superintendence of the government hospital for the insane and550 THE GOVERNMENT OF THE UNITED STATES.the Columbia Asylum for the Deaf and Dumb; (x . ) Of the Geological Survey; (xi. ) Of the Freedmen's Hospital and the HowardUniversity.1349. Many of these subdivisions of the Interior, though in strictnesssubject to the oversight and control of the Secretary of the Interior, havein reality a very considerable play of independent movement.1350. (8 ) A Department of Agriculture, which is charged withfurthering in every possible way, by the collection of informationnot only, but also by the prosecution of scientific investigation.with reference to the diseases of plants, etc., the agriculturalinterests of the country, and under which there are maintained aspecial Forestry Division, and the national Weather Bureau.1351. Set apart to themselves, and therefore without representation in the Cabinet, there are ( 1 ) The Department of Labor,which is charged with the collection and publication of statisticaland other information touching the condition and interests oflaborers, information, for instance, bearing upon the relationsof labor and capital, hours of labor, the housing of laborers, ratesof wages and methods of payment, the food and expenses oflaborers, etc. (2) The Interstate Commerce Commission, a semijudicial body by which the federal statutes forbidding unjustdiscrimination in railway rates in interstate freight or passengertraffic, prohibiting certain sorts of combinations in railroad management, etc., are interpreted and enforced. (3) The Civil Service Commission by which the Act mentioned in sec. 1331 isadministered. (4) The Commission of Fish and Fisheries, whoseduty it is to make the .necessary investigations and prosecutethe necessary measures for the preservation, improvement, andincrease of the stock of fish in our rivers and lakes and on ourcoasts. (5) The Government Printing Office, which prints allpublic documents. (6) The Smithsonian Institution, the NationalMuseum, and the Bureau of Ethnology.Histories:SOME REPRESENTATIVE AUTHORITIES.Adams, Henry, " The History of the United States under the Administrations of Jefferson and Madison," 9 vols. , N.Y., 1889-1891;THE GOVERNMENT OF THE UNITED STATES. 551and " Documents relating to New England Federalism, " Boston,1877.Adams, Herbert B., " Maryland's Influence upon Land Cessions to theUnited States," in the Johns Hopkins Studies in Historical and Political Science, 3d Series, No. 1 .American Statesmen Series, a series of biographies. 26 vols. , 12 mo.Boston, 1882-1891 .Bancroft, George, " History of the United States," from the discovery ofAmerica to the adoption of the federal constitution. Revised ed. ,6 vols. , 8vo. N.Y.Benton, Thomas H., " Thirty Years' View; or, A History of the Working of the American Government for Thirty Years, 1820-1850. "2 vols. , 8vo . N.Y., 1854-1856.Bishop, Cortlandt F., “ History of Elections in the American Colonies "(Columbia College Historical Studies) , N.Y., 1896.Curtis, George T., “ History of the Origin, Formation, and Adoption ofthe Constitution of the United States. " 3 vols., N.Y., 1854, 1858,1896.Doyle, J. A., " The English Colonies in America," to the end of the seventeenth century. 3 vols. , N.Y., 8vo. , London and N.Y., 1882-1889 .Fisher, George P. , " The Colonial Era," N.Y., 1892.Fiske, John, " The Critical Period of American History, " Boston, 1888,1897 .Frothingham, Richard, " Rise of the Republic of the United States," Boston, 1872.Hart, Albert B., " Formation of the Union. " 8th ed. , revised . Londonand N.Y., 1897.Hildreth, R., " History of the United States from the Discovery of America to the End of the Sixteenth Congress " ( 1821) . Two Series,6 vols. New ed. N.Y., 1879.Holst, H. von, " The Constitutional and Political History of the UnitedStates." Translated from the German. 7 vols . Chicago, 1877-1892.Jameson, J. F., ( editor) " Essays in the Constitutional History of theUnited States in the Formative Period, 1775-1789," Boston, 1889.Johnston, Alexander, " History of American Politics . " 3d ed. , revised .N.Y., 1890. And "The First Century of the Constitution," in theNew Princeton Review, September, 1887.Landon, Judson, S., " The Constitutional History and Government oftheUnited States. A Series of Lectures," Boston, 1889 .Lodge, Henry C., " A Short History of the English Colonies in America. "N.Y., 1881.552 THE GOVERNMENT OF THE UNITED STATES.MacMaster, John B. , " History of the People of the United States, " 4vols . , N.Y., 1883-1895.Pitkin, Timothy, " Political and Civil History of the United States ofAmerica from their Commencement to the Close of the Administration of Washington. " 2 vols. , Svo. New Haven, 1828.Rhodes, James F., " History of the United States from the Compromise of1850. " 3 vols. , 8vo. N.Y. , 1893-1895 .Roosevelt, Theodore, “ The Winning of the West, " 4 vols. , London andN.Y., 1889-1896.Schouler, James, " History of the United States of America under theConstitution, " 5 vols. , N.Y., 1889-1891 .Scott, Eben G., " Development of Constitutional Liberty in the EnglishColonies of America, " N.Y., 1882.Sloane, William M., " The French War and the Revolution, " N.Y., 1893.Stanwood, Edward, " A History of Presidential Elections. " 2d ed. , revised . Boston, 1892.Sumner, William G., “ Politics in America, 1776-1876. ” North AmericanReview, January, 1876, p. 47.Taylor, Hannis, " The Origin and Growth of the English Constitution."Vol. I., introductory chapter. Boston, 1889.Thwaites, Reuben G., " The Colonies, 1492-1750. " 10th ed. , revised.London and N.Y., 1897.Tucker, George, " The History of the United States from their Colonization to the End of the Twenty- sixth Congress in 1841 ," 4 vols.Phila. , 1856-1857.Walker, Francis A., " The Making of the Nation, " N.Y., 1895.Winsor, Justin, (editor) , “ Narrative and Critical History of America. "Vol. VII. Boston, 1888. Contains full bibliographical notes .Wilson, Woodrow, " Division and Reunion , 1829-1889, " 13th ed. , Londonand N.Y., 1898.The controversial literature accompanying and preceding the War ofSecession may be seen, representatively, in:Adams, John, " Works."Bledsoe, Albert T., “ Is Davis a Traitor? " Balto. , 1866.Brownson, O. A., " The American Republic: its Constitution, Tendencies,and Destiny, " N.Y., 1866 and 1886.Calhoun, John Caldwell, " Works. "Centz, P. C. (B. J. Sage) , " The Republic of Republics, " Boston, 4thed. , 1881 .Hurd, J. C., “ The Theory of Our National Existence, " Boston, 1881.Jefferson, Thomas, " Works."THE GOVERNMENT OF THE UNITED STATES. 553Stephens, Alexander H., " A Constitutional View of the War between theStates." 2 vols . , 8vo. Phila. , 1868 .Webster, Daniel, " Speeches. "Commentaries and Treatises:Borgeaud, Charles, " The Adoption and Amendment of Constitutions inEurope and America, " N.Y., 1895.Boutmy, Émile, " Studies in Constitutional Law," London and N.Y.,1891.Bryce, James, " The American Commonwealth. " 2 vols. , 3d ed. , London and N.Y. , 1893-1895 .Burgess, John W., " Political Science and Constitutional Law, " 2 vols. ,Boston, 1891.Carter, C. H., "Connecticut Boroughs, " in New Haven Historical Society'spapers, Vol. IV.Cooley, Thomas M., " Treatise on the Constitutional Limitations whichrest upon the Legislative Power of the States of the AmericanUnion." Boston, 2d ed. , 1871. "The General Principles of Constitutional Law in the United States of America, " Boston, 1880,and several later editions. And (with others) " ConstitutionalHistory of the United States as seen in the Development of AmericanLaw," a survey of the successive constitutional decisions of theSupreme Court of the United States. N.Y. , 1889.Coxe, Brinton, " Judicial Power and Unconstitutional Legislation, "Phila. , 1893 .Dicey, Albert V., " Lectures Introductory to the Study of the Law of theConstitution." 5th ed. , London and N.Y., 1897. This book, thougha commentary on the English constitution, contains much excellentcomment also on our own.Dupriez, L., “ Les Ministres dans les principaux Pays d'Europe et d'Amérique," 2 vols. , Paris, 1892. Vol. II. , pp. 3 et seq.Ely, Richard T., " Taxation in American States and Cities. " Svo. , N.Y.,1888.The Federalist, by Alexander Hamilton, James Madison, and John Jay.Fiske, John, " Civil Government in the United States considered withSome Reference to its Origins, " Boston, 1890.Follett, M. P. , " The Speaker of the House of Representatives, " London and N.Y., 1896.Ford, W. C., " The American Citizen's Manual." Part I. N.Y., 1882.Goodnow, Frank J., " Comparative Administrative Law, " 2 vols. , Londonand N.Y., 1893. And " Municipal Home Rule," London and N.Y.,1895.554 THE GOVERNMENT OF THE UNITED STATES.Harrison, Benjamin, “ This Country of Ours, ” N.Y., 1897.Holst, H. von, “ Das Staatsrecht der Vereinigten Staaten von America,"in Marquardsen's " Handbuch des oeffentlichen Rechts der Gegenwart, " Freiburg in B., 1885. Translated under the title, "TheConstitutional Law of the United States of America, " Chicago, 1887.Howard, George E., " Local Constitutional History of the United States."Vol. I., 8vo. Balto. , 1885.Jameson, J. F., " Introduction to the Constitutional and Political Historyof the Individual States, " in the Johns Hopkins University Studies inHistorical and Political Science, 4th Series, No. V.“Johns Hopkins Studies in Historical and Political Science,” 14 vols.,Balto. , 1883-1896.Maine, Sir H. S., " Popular Government, " N.Y., 1886. Especially Chap.VI.Oberholzer, E. P., " The Referendum in America."Parker, Joel, "Jaffrey Address, " 1873. " Origin, Organization, and Influence of the Towns of New England. " Proceedings Mass. Hist.Soc'y, June, 1886.Poore, Ben: P., " Federal and State Constitutions, Colonial Charters, andother Organic Laws of the United States," 2 vols. , Washington,1877.Schouler, James, “Constitutional Studies, " N.Y., 1897."Shires and Shire Towns in the South. " Lippincott's Magazine, August,1882.Stevens, C. E., " Sources of the Constitution of the United States," London and N.Y. , 1894.Story, Joseph, " Commentaries on the Constitution. " Ed. by T. M. Cooley.Tocqueville, Alexis de, " Democracy in America." Translated by HenryReeve. New ed. London, 1875.Wilson, Woodrow, " Congressional Government, A Study in AmericanPolitics," Boston, 1885.XII.SUMMARY: CONSTITUTIONAL AND ADMINISTRATIVE DEVELOPMENTS.11352. Continuity of Development. From the dim morninghours of history until now, the law of coherence and continuityin political development has suffered no serious breach. Humanchoice has in all stages of the great world-processes of politicshad its part in the shaping of institutions; but it has never beenwithin its power to proceed by leaps and bounds: it has beenconfined to adaptation, altogether shut out from raw invention.Institutions, like morals, like all other forms of life and conduct,have had to wait upon the slow, the almost imperceptible formations of habit. The most absolute monarchs have had to learnthe moods, observe the traditions, and respect the prejudices oftheir subjects; the most ardent reformers have had to learn thattoo far to outrun the more sluggish masses was to render themselves powerless. Revolution has always been followed by reaction, by a return to even less than the normal speed of politicalmovement. Political growth refuses to be forced; and institutions have grown with the slow growth of social relationships;have changed in response, not to new theories, but to new circ*mstances.1353. The Order discoverable in Institutional Development isnot, indeed, the order of perfect uniformity: institutions, likethe races which have developed them, have varied infinitely according to their environment. Climate, war, geographical situation,have shaped them: the infinite play of human thought, the infinitemany-sidedness of human character have been reflected in them.But the great stages of development have remained throughout555556 SUMMARY.clear and almost free from considerable irregularities. Testedby history's long measurements, the lines of advance are seen tobe singularly straight.1354. Course of Development in the Ancient World. ww -If thebond of kinship was at first clear and unmistakable, it must erelong have become much less defined in the broadened Family.When the Family became merged in the still wider Community,solidarity remained and a strong sense of kinship, but the realityof kinship had no doubt largely departed, and law had begun totake on a public character, to bear the sanction of all rather thanthe sanction of a single supreme person. Kinship was typifiedstill in the hereditary character of the kingship; but the kingwas now the representative of the community rather than itsThe Community developed into the city-state andfurther than this the ancient peoples did not go. In Rome andin the great city-states of Greece the conception of citizenshipsupplanted the idea of kinship. The state became virtuallypersonified in the thought of the time. It was the centre ofcivic affection and the object of all civic virtue.The publicofficer ruled not in his own name but in the name of the State.Around Rome at last there grew up a vast Empire; but it wasRome's Empire, the world had fallen into the hands of a city,and the only citizenship that Caracalla could bestow was thecitizenship of Rome. This city-statehood was the last word ofthe ancient world in politics.-―1355. The Feudal System and the Modern Monarch. Whenthe Germans emerge upon the European field we have the Statein a new aspect. Nations are moving in arms, and the Hostis the State. Commanders of Hosts are the kings of the neworder of things. The Host settles on the lands of the old Romandominions, and that military tenure is developed which we havelearned to call the Feudal System. This Feudal System, when ithas worked its perfect work, in such countries as France andGermany, brings forth still a third type of kinship: we presentlyhave the king who owns his kingdom as supreme feudal lord: theking who, having absorbed fief after fief, at last possesses his kingdom by a perfected legal title; the king whose realm is his estate.This is the king who becomes the sole source of law and of justice,SUMMARY. 557the king who, in our day, has granted out of his abundant grace.rights and constitutions to his people.-- 1356. England's Contribution. Where the Feudal System failsof its full fruitage, as in England, where freehold estates are notentirely blotted out, where tenure of the king as overlord is atheory but never a reality, and where local self-government obtainsa lasting rootage in the national habit, political development takesanother course. There political liberty abides continually, in oneform or another, with the people, and it is their operative powerwhich gives to liberty expansion, and which finally creates theconstitutional state, the limited monarchy, the free self-governingnation. Out of the fief grew the kingdom; out of the freeholdand local self-government grew the constitutional state; out ofthe constitutional state grew that greatest of political developments, the free, organic, self-conscious, self-directing nation , withits great organs of popular representation and its constitutionalguarantees of liberty.1357. The Romans and the English.- In the general history ofEuropean development two nations stand forth preeminent fortheir political capacity: the Roman nation, which welded thewhole ancient world together under one great organic system ofgovernment, and which has given to the modern world the groundwork of its systems of law; and the English nation, which gavebirth to America, which has " dotted over the whole surface ofthe globe with her possessions and military posts," and fromwhich all the great nations of our time have borrowed much oftheir political thought and more of their political practice. Andwhat is most noteworthy is this, that these two nations closelyresemble each other, not only in the mental peculiarities whichconstitute the chief element of their political strength, but also inthe institutional foundations which they have successively laidfor their political achievements.-1358. Likenesses between the Two Imperial Nations. Bothhave been much stronger in creating and working institutions thanin explaining them: both of them have framed such a philosophyas they chose to entertain after the fact ': neither has been toocurious in examining the causes of its success or in working outlogical sequences of practice. Above all, neither has suffered any558 SUMMARY.taint of artificial thoroughness to attach itself to its politicalmethods. Slowly, and without much concern for theories of government, each has made compromise its method, adaptation itsstanding procedure. Illogical, unimaginative their mode of procedure must be said to have been throughout, a mode for slow,practical men, without speed or boldness. Revolution has neverfallen within their calculations; even change they have seldomconsciously undertaken. If old institutions must perish, theymust perish within the Roman or English system by decay, bydisuse, not by deliberate destruction: if new institutions must beconstructed, they must be grafted on the old in such wise thatthey may at least seem to be parts of the same stock, and maypartake as largely as may be of that one vitalizing sap, old custom. As the Roman Senate, from being the chief motive powerof the state, came at last to exercise only such prerogatives as thepeople and the people's officers suffered it to retain, so the English House of Lords, from being the single coadjutor of the kingin legislation, has been reduced to a subordinate part which itplays only upon a sort of sufferance, and all without any suddenor premeditated step of revolution . As the consular power inRome was slowly pared down to be dealt out in parts to plebeianofficials, so has the royal power in England been piece by piecetransferred to the hands of ministers , the people's representatives .The whole political method of the two peoples is the same: themethod of change so gradual, so tempered with compromise anddiscretion, so retarded and moderated by persistent habit thatonly under the most extraordinary pressure is it ever hastenedinto actual revolution .1359. Popular Initiative in Rome and England. - Doubtlessmuch of this likeness of temperament and method is due to thefact that both in Rome and in England it has been the nation, andnot merely a small governing class, which has been behind political change. The motive power was popular initiative: the processof change was the labored process of legislation , the piece-mealconstruction which is to be compounded out of the generalthought. Measures have had in both cases to be prepared for thegeneral acceptance; and popular action, wherever it is the wontfor the people to act, is always conservative action. A king's law-SUMMARY. 559making is apt to be rapid, thorough, consistent; but a nation'slaw-making, devised and struggled for piece by piece, cannot be.The plebeians in Rome fighting inch by inch towards the privileges which they coveted, the people in England making theirway by long-protracted efforts towards the control they desiredto exercise, have had to advance with painful slowness, and tobe content with one piece at a time of the power they strovefor.--1360. Rome's Change of System under the Empire. With thefull establishment of imperial forms of government Rome lost theconservative habit of her republican period. The methods ofthe first emperor, indeed, were slow and cautious in the highestdegree: Augustus avoided all show or name of imperial power.Carefully regardful of republican sentiment and spirit, which heknew to be not yet extinct, he simply accumulated to himself oneby one every republican office, professing the while merely toexercise for somewhat extended periods, —periods which steadilylengthened from terms of years to tenure for life, but by freegift of the Senate and people, the old offices of self-government.But later emperors were by no means so careful or so considerateof popular prejudices: their power was open, bold, oftentimeseven wanton. And with these changes in the nature of thegovernment came radical changes in political method: therecame the wilful creation of new offices known to no Romancustom, the constant breach of old practices hallowed by immemorial Roman habit, the whole familiar process, in brief, ofarbitrary power. What Rome gained thus in discipline, in military efficiency, she lost in political capacity. For that capacityso characteristic of the Romans and the English, the capacitynamely for political organization, is beyond question inseparablyconnected with popular initiative, with national self-direction,with self-government.¹1361. Fundamental Contrast between English and RomanPolitical Method. The most striking contrast between theEnglish and the Romans consists in a vital and far-reaching1 The student ought to test in detail this likeness between Rome andEngland. I can here only indicate in the most rapid way the line ofstudy.560 SUMMARY.cases.difference in political organization. What I have said touchingthe national action of the two peoples, the slow, conservativeconcert of the people as a whole in the origination and effectuation of policy must be understood in different senses in the twoIt was true of the Romans only during the period ofthe Republic and while the Roman people could take a directpart in affairs. The Teuton brought into force, particularly inEngland, the principle of representation, that organization byrepresentative assemblies which enabled the people to act overwide areas through trusted men elected to speak and act intheir stead, and which thus enabled the organization of thenation to extend without loss of vitality. Of such methods theRoman knew nothing. Only the people of the city of Rome hadany part in Roman legislation, for the Roman had conceived ofno way of acting by a delegation of the law-making power onthe part of the people. The equal and concerted action ofwidely diffused populations through the instrumentality ofrepresentation was utterly unknown to the ancient world. Thecounty court with its reeve and four selected men from eachtownship, the parliament with its knights from the shire andits burgesses from the towns, instrumentalities so familiar everywhere now that the world has gone to school to the English inpolitics, were for a long time peculiar to England in their bestfeatures. They were the peculiar fruit of Teutonic politicalorganization where that organization had grown most apart fromthe Roman influence, in England, not on the Continent, penetrated as the continental lands were everywhere by the Romanexample. Rome had had no similar means of holding her vastpopulations together in active political cooperation and livingunion. Therefore, as her conquests spread, her system becamemore and more centralized and autocratic. The English couldhold populations together, however large they might be, bymeans of representative assemblies; but the Roman, who knewno method of admitting scattered peoples to a part in the centralgovernment, who knew no popular assemblies except those inwhich all citizens should be actually present and vote, couldhold an extended empire together only by military force andthe stern discipline of official subordination.SUMMARY. 5611362. The Development of Legislatures. Perhaps the mostdistinguishing feature of modern as compared with ancientpolitics is the difference between the sphere, the mode, and theinstrumentalities of legislation now, and the character andmethods of legislation among the classical nations. Representative law-making bodies are among the common-place institutions of the political world as we know it: but no suchassembly was ever dreamed of by any ancient politician, Greekor barbarian. Every citizen either took direct part in legislationor took no part in it at all. Aristotle believed, consequently,that no free state could exist with a wide territory or a population so scattered as to be unable to attend the assemblies. Butwhat the Greeks and Romans did not know at all the Teutonseems to have known almost from the first: representation isone of the most matter-of-course devices of his native polity,and from him the modern world has received it.1363. Our early colonial history furnishes at least two very curiousexamples of a transition from primary to representative assemblies. Theearliest legislature of Maryland was a primary assembly composed of allthe freemen of the colony; to the next assembly some were allowed tosend proxies; and before representation was finally established thereappeared the singular anomaly of a body partly representative, partlyprimary, at least one freeman insisting upon attending in person (Doyle,I. , pp. 287-290) . The other example is to be found in the history ofRhode Island, whose citizens for some time insisted upon meeting at Newport in primary assembly for the purpose of electing the persons who wereto represent them in the colonial legislature, thus as it were jointly inaugurating the session, to use Mr. Foster's words, and then leaving the legislature " to run for itself for the remainder of the time " ( W. E. Foster,Town Government in Rhode Island, p. 26) .1364. The Powers of a Representative. But only verymodern times have settled the theory of a representative'spower. The strong tendency among all vigorously political,all self-reliant self-governing peoples has been to reduce theirrepresentatives to the position and functions of mere delegates,bound to act, not under the sole direction of their own judgments, but upon instruction from their constituents. The betterthought of later times has, however, declared for a far differentview of the representative's office, has claimed for the represent-562 SUMMARY.1ative the privilege of following his own judgment upon publicquestions, of acting, not as the mouthpiece but rather as thefully empowered substitute of his constituents.1365. Scope of Modern Legislation. The question is of thegreater importance because of the extraordinary scope of legislation in the modern state, and of the extreme complexity nowadays attaching to all legislative questions. Time was, in theinfancy of national representative bodies, when the representatives of the people were called upon simply to give or refuse theirassent to laws prepared by a king or by a privileged class in thestate; but that time is far passed. The modern representativehas to judge of the gravest affairs of government, and has tojudge as an originator of policies. It is his duty to adjust everyweighty plan, preside over every important reform, provide forevery passing need of the state. All the motive power of government rests with him. His task, therefore, is as complex as thetask of governing, and the task of governing is as complex as isthe play of economic and social forces over which it has topreside. Law-making now moves with a freedom, now sweepsthrough a field unknown to any ancient legislator; it no longerprovides for the simple needs of small city-states, but for thecomplex necessities of vast nations, numbering their tens ofmillions. If the representative be a mere delegate, local interests must clash and contend in legislation to the destruction ofall unity and consistency in policy; if, however, the representative be not a mere delegate, but a fully empowered member ofthe central government, coherence, consistency, and power maybe given to all national movements of self- direction .1366. The Making , Execution, and Interpretation of Law. -The question of the place, character, and functions of legislationis in our days a very different question from any that faced theancient politician. The separation of legislative, judicial, andexecutive functions is a quite modern development in politics,and we have questions to settle concerning the integration ofthese three functions which could not have arisen in any ancientstate. In the early days when the family was the state; in thelater days when the political organization, although it had lost.the father's omnipotent jurisdiction, still rested upon the idea ofSUMMARY. 563kinship; and even in still later times when forms of governmentinherited from these primitive conceptions still persisted, all thefunctions of government were vested in a single individual or ina single body of individuals, in a father-king or in an assemblyof elders. Even in highly developed free states like Athens noadequate or complete recognition of any essential difference inthe character of the several duties of the judge, the executiveofficer, and the law-maker is discoverable. It was a very modernconception that governmental functions ought to be parcelled outaccording to a careful classification . The ancient assembly madelaws, elected officers, passed judgment upon offenders against thelaws, and yet was conscious of no incongruity. It was before theday when any one could be shocked by such a confusion of powers.1367. Modern politicians are, however, greatly shocked by suchconfusions of function. They insist, as of course, that every constitution shall separate the three departments ' of government,and that these departments shall be in some real sense independent of each other; so that if one go wrong the others maycheck it by refusing to coöperate with it. In no enlightenedmodern system may the legislator force the judge, or the judge.interfere with the privileges of the legislator, or judge or legislator wrongly control the executive officer.1368. Charters and Constitutions. — This division of powersbetween distinct branches of government has been greatly emphasized and developed by the written constitutions so characteristic of modern political practice. These constitutions haveby no means all had the same history, and they differ as widelyin character as in origin; but in every case they give sharp definiteness to the organs and methods of government which illustrate the most salient points of modern political development.Our own constitutions, as we have seen (sec. 1062) , originated ingrants from the English crown, for which were substituted, inthe days following the war for Independence, grants by thepeople. Originally royal, they are now national charters: andthey have been kept close to the people, firmly based upon theirdirect and explicit sanction. The constitutions of Switzerlandbear a like character: proceeding from the people, they rest inall points upon the people's continuing free choice.564 SUMMARY.1369. In France, on the contrary, the people have as yethad no direct part in constitution-making. French constitutions have in all cases been both made and adopted by constituent assemblies: at no stage are the people directly calledupon for their opinion, not even after the constitution hasbeen formulated. Its adoption, like its construction, is a matterfor the constituent assembly alone: it is given to the people,not accepted by them. The present constitution of the Republic was even framed and adopted by a convention whichcould show no indisputable right to act as a constituentassembly (sec. 396) .1370. Creation vs. Confirmation of Liberties by Constitution.This process, of the gift of a constitution to the people byan assembly of their own choice, may be said to be intermediate between our own or the Swiss practice, on the one hand,and the practice of the monarchial states of Europe, on theother, whose constitutions are the gift of monarchs to theirpeople. In many cases they have been forced from reluctantmonarchs, as Magna Charta was wrung by the barons fromJohn but whether created by stress of revolution, as in somany states in 1848 (sec. 490) , or framed later and more atleisure, as in Prussia (sec. 490) , they have been in the formof royal gifts of right, have not confirmed but created libertiesand privileges.1371. Our own charters and constitutions have, on the contrary, been little more than formal statements of rights andimmunities which had come to belong to Englishmen quite independently of royal gift or favor. The Acts of Parliamentupon which the governments of such modern English coloniesas Canada and Australia rest do scarcely more, aside fromtheir outlining of forms of government, than extend to thecolonists the immemorial privileges of Englishmen in England.And so our own colonial charters, besides providing for governors, courts, and legislatures, simply granted the usual rightsof English freemen. Our constitutions have formulated ourpolitical progress, but the progress came first. European constitutions, on the other hand, have for the most part createdthe rights and immunities, as well as the popular institutions,SUMMARY. 565which they embody they institute reform, instead of merelyconfirming and crystallizing it.-1372. The Modern Federal State: contrasted with Confederations . In no part of modern political development havewritten constitutions played a more important, a more indispensable rôle than in the definite expression of the nice balanceof institutions and functions upon which the carefully adjustedorganism of the modern federal state depends. The federalstate, as we know it, is a creation of modern politics . Ancienttimes afford many instances of confederated states, but noneof a federal state. The mere confederations of ancient and ofmodern times, however long preserved, and of however distinguished history, were still not states in the proper sense of theterm .1373. The most prominent example of a confederation in ancient timeswas the celebrated Achæan League ( sec . 92) . In modern times we havehad the early Swiss confederation (sec . 633) , the several German confederacies (secs. 489, 491 ), and our own short-lived Confederation ( sec. 1067 ) .1374. They were composed of states, and their only constituent law was treaty. They were themselves, as confederacies,without sovereign power: sovereignty remained unimpaired withtheir component states. Their members did not unite: theysimply agreed, as equals, to act in concert touching certain.matters of common interest.1375. The modern federal state, on the contrary, is a singleand complete political personality among nations: it is not atmere relationship existing between separate states, but is itselfa State. To use two expressive German terms, a confederationis a Staatenbund, (a " Band of States ") merely, while a federalstate is a Bundesstaat (a " Banded State " ) . Confederation andfederal state have this peculiarity in common, that they areboth constituted by the association of distinct, independent communities but under a confederation these communities practically remain distinct and independent, while within a federalstate they are practically welded together into a single state,into one nation.1376. Under both forms, however, it has proved possible to make provision for the association, upon the best terms of mutual help and support,566 SUMMARY.!of communities unlike in almost every feature of local life , and even ofcommunities diverse in race, without any surrender of their individualityor of their freedom to develop each its characteristic life. Nothing couldwell be conceived more flexible than a system which can hold togetherGerman, French, and Italian elements as the Swiss constitution does.1377. Distinguishing Marks of the Federal State. The federal state has, as contrasted with a federation, these distinguishing features: (a) a permanent surrender on the part ofthe constituent communities of their right to act independentlyof each other in matters which touch the common interest,and the consequent fusion of these communities, in respect ofthese matters, into what is practically a single state. Asregards other states they have merged their individuality intoone national whole: the lines which separate them are none ofthem on the outside but all on the inside. (b) The federalstate possesses a special body of federal law and a special federaljurisprudence in which is expressed the national authority ofthe compound state. This is not a law agreed to by the constituent communities: as regards the federal law there are noconstituent communities. It is the spoken will of the new community, the Union. (c) There results a new conception of sovereignty. The functions of political authority are parcelled out.In certain spheres of action the authorities of the Union areentitled to utter laws which are the supreme law of the land; inother spheres of action the constituent communities still act withthe full autonomy of independent states. The one set of authorities is sovereign; for it presides, and the range of its powers is, inthe last resort, determined by itself; but the other set of authorities exercises full dominion, though in a narrower sphere. Itspowers are independent and self- sufficient, neither given nor subject to be taken away by the government of the Union, originative of rights, and exercised at will.1378. All modern federal states have written constitutions;but a written constitution is not an essential characteristic of federalism , it is only a feature of high convenience; such delicatecoördinate rights and functions as are characteristic of federalismmust be carefully defined; each set of authorities must have its definite commission,SUMMARY. 567-1379. It is not certain that the federal state, as at present established ,is not a merely temporary phenomenon of politics . It is plain from thehistory of modern federal states, a history as yet extremely brief, -that the strong tendency of such organization is towards the transmutationof the federal into a unitary state. After union is once firmly established ,not in the interest only but also in the affections of the people, the drift would seem to be in all cases towards consolidation.1380. Existing Parallels and Contrasts in Organization. — Thedifferences which emerge most prominently upon a comparisonof modern systems of government are differences of administrative organization chiefly and differences in the relationshipborne by Executives to Legislatures.--- 1381. Administrative Integration: Relation of Ministers to theHead of the Executive. - One of the chief points of interestand importance touching any system of administration is therelation which the ministers of state bear to the head of theExecutive. Of course much of the consistency and success ofpolicy depends upon the presence or absence of a single guidingwill if ministers be without real leadership, they are apt to bewithout energy or success in policy, if not actually at odds witheach other.1382. Under our own system the heads of departments arebrought together into at least nominal unity by their common subordination to the President. Although they are, as we have seen(sec. 1323), rather the colleagues than the servants of the President, his authority is yet always in the last resort final anddecisive: the secretaries have had very few powers conferredupon them by Congress in the exercise of which they are notmore or less subject to presidential oversight and control. ThePresident is in a very real sense head of the Executive. InFrance and England, on the contrary, the nominal head of theExecutive is not its real head. Not the President or the sovereign but the Prime Minister speaks the decisive word inadministration and in the initiation of policy, and the PrimeMinister only so far as he can carry his colleagues with him.The headship of the President and the sovereign is in large partformal merely, being real only in proportion to the influencegiven them by their interior position as regards affairs. The568 SUMMARY.influence of the Prime Minister is the vital integrating force.Perhaps it is safe to say that only in Germany, among constitutional states, have we an example of a really sovereign guiding willin administration. The Emperor's own will or that of the viceregent Chancellor is the real centre and source of policy, and theheads of department are ministers of that will. And there isunder such a system an energy and coherence of administrativeaction such as no other system can secure. The grave objectionto it is the absorption of so much vitality by the head of thestate that its outlying parts, its great constituent members, thepeople, are apt to be drained of their political life.1383. Relations of the Administration as a Whole to the Ministers as a Body. Scarcely less important from an administrative point of view than the relations of the ministers to the headof the Executive is the relation of the administration as a whole,both central and local, to the ministers as a body. We have seen(secs. 1185, 1206, 1207) that in the commonwealths of our ownUnion there is in this regard practically no administrativeintegration; that the central officers of administration do not as arule constitute a controlling but only a superior sort of clericalbody. In our federal organization we have the President assupreme chief, but the cabinet as a body does not usually exerciseany concerted control over administration taken as a whole. Itsconferences as a body are confined for the most part to politicalquestions administrative questions are decided separately, byeach department for itself, the only real central authority inadministrative matters being the President's opinion, not thecounsel of his ministers. As regards points of administrativepolicy each department is a law unto itself. In England we finda slightly greater degree of administrative control exercised bythe Cabinet as a body. A " Treasury minute," for instance, isrequired for any redivision of business among the departments,and such redivisions are presumably matters of agreement in Cabinet council. But even in England the administrative control ofthe Cabinet is rather the result of the political responsibilityof the Cabinet than of any conscious effort to integrate administration by the constitution of a body which shall habitually regulate, by semi-judicial processes, the main features and whenSUMMARY. 569necessary even the details of executive management. In Franceand Prussia, on the contrary, such an effort is made, and is madewith effect. In France, besides a Cabinet of ministers whosefunction is wholly political, there is a Council of ministers whosesingle office is systematic administrative oversight, the harmonizing of methods, the proper distribution of business among thedepartments, etc. (sec. 422); and above this Council of ministers,again, there is a Council of State, a judicial body whose part it isto accommodate all disputes and adjust all conflicts of jurisdiction between the departments, as well as to act as the supremeadministrative tribunal (sec. 468) . In Prussia there is a likesystem: a Staatsministerium which to a certain extent combinesthe duties given in France to the Council of Ministers and to theCouncil of State, and also a Council of State which is by degreesbeing elevated to high judicial functions (secs . 576, 577).1384. The Administration and the Legislature. The relationsborne by the Administration, the branch which executes the laws,to the Legislature, the branch which makes the laws, touchthe very essence of a system of government. Legislation andadministration ought under every well-devised systemto go handin hand. Laws must receive test of their wisdom and feasibilityat the hands of administration: administration must take itsenergy and its policy from legislation. Without legislation administration must limp, and without administration legislationmust fail of effect. The vital connection between the two is wellillustrated in the matter of money appropriations for the supportof administration. Legislators hold, and properly hold, thepurse-strings of the nation: only with their consent can taxes beraised or expended . Without the appropriations for which theyask, administrators cannot efficiently perform the tasks imposedupon them but without full explanation of the necessity forgranting the sums asked and of the modes in which it is proposedto spend them legislators cannot in good conscience vote them.A perfect understanding between Executive and Legislature is,therefore, indispensable, and no such understanding can exist inthe absence of relations of full confidence and intimacy betweenthe two branches.

1385. The absence of such a coöperative understanding has570 SUMMARY.led in France to the gravest financial impotency on the part of thegovernment. The Chambers trust almost nothing concerning appropriations to the authoritative suggestion of the ministers. Thegreat Budget Committee (sec. 434) not only examines and revisesbut also at pleasure annuls or utterly reverses the financial proposals of the ministers: the ministers are for the most part leftentirely without power, and therefore entirely without responsibility, in the matter, and appropriations follow the whim of theChambers rather than the necessities of administration. In England the ministers are allowed to insist upon the appropriation ofthe sums they ask for, because they are held strictly responsibleto Parliament for the policy involved in every financial proposal.The means of raising the money desired Parliament is to a certainextent at liberty to suggest without implying distrust of theministers; but the amounts the ministers ask for must be votedunless Parliament wishes the ministers to resign. Confidenceand responsibility go hand in hand (secs. 868, 871) . Underour own system there is practically no commerce between theheads of departments and Congress: the administration sendsin estimates, but the Appropriations Committees of the housesdecide without ministerial interference the amounts to begranted.1386. The relations existing between the Executive and theLegislature equally affect every other question of policy, frommere administrative questions, such as the erection of new departments, increases of clerical force, or the redistribution of departmental business, to the gravest questions of commerce, diplomacy,and war. The integration or separation of the Executive and theLegislature may be made an interesting and important criterionof the grade and character, in this day of representative institutions, of political organization in the case of existing governments.Thus in England we have complete leadership in legislation intrusted to the ministers, and to complete leadership is addedcomplete responsibility (secs. 868, 871) . In France we have partial leadership (financial matters being excluded) with entireresponsibility (sec 427) . In Prussia, leadership without responsibility (sec. 533-536); and in Switzerland the same (sec. 670).SUMMARY. 571Under our own system we have isolation plus irresponsibility, -isolation and therefore irresponsibility. Atthis point more widelythan at any other our government differs from the other governments of the world. Other Executives lead; our Executiveobeys.XIII.NATURE AND FORMS OF GOVERNMENT.a ་ བཏི་ D1387. Government rests upon Authority and Force. — The essential characteristic of all government, whatever its form, isauthority. There must in every instance be, on the one hand,governors, and, on the other, those who are governed. And theauthority of governors, directly or indirectly, rests in all casesultimately on force. Government, in its last analysis, is organized force. Not necessarily or invariably organized armed force,but the will of a few men, of many men, or of a community prepared by organization to realize its own purposes with referenceto the common affairs of the community. Organized, that is, torule, to dominate. The machinery of government necessary tosuch an organization consists of instrumentalities fitted to enforcein the conduct of the common affairs of a community the willof the sovereign men: the sovereign minority, or the sovereignmajority.-1388. Not necessarily upon Obvious Force. This is not, however, to be interpreted too literally, or too narrowly . The forcebehind authority must not be looked for as if it were always tobe seen or were always being exercised . That there is authoritylodged with ruler or magistrate is in every case evident enough;but that that authority rests upon force is not always a fact uponthe surface, and is therefore in one sense not always practicallysignificant. In the case of any particular government, the forceupon which the authority of its officers rests may never once forgenerations together take the shape of armed force. Happilythere are in our own day many governments, and those amongthe most prominent, which seldom coerce their subjects, seemingin their tranquil, noiseless operations to run of themselves. They572NATURE AND FORMS OF GOVERNMENT. 573in a sense operate without the exercise of force. But thereis force behind them none the less because it never shows itself.-The better governments of our day, -- those which rest, not uponthe armed strength of governors, but upou the free consent of thegoverned, are founded upon constitutions and laws whosesource and sanction are the habit of communities. The forcewhich they embody is not the force of a dominant dynasty or ofa prevalent minority, but the force of an agreeing majority.And the overwhelming nature of this force is evident in the factthat the minority very seldom challenge its exercise. It is latentjust because it is understood to be omnipotent. There is forcebehind the authority of the elected magistrate, no less thanbehind that of the usurping despot, a much greater force behindthe President of the United States than behind the Czar ofRussia. The difference lies in the display of coercive power.Physical force is the prop of both, though in the one it is thelast, while in the other it is the first, resort. Mell al put.1389. The Governing Force in Ancient and in Modern Society.-These elements of authority and force in government are quiteplain to be seen in modern society, even when the constitutionof that society is democratic; but they are not so easily discoverable upon a first view in primitive society. It is common nowadays when referring to the affairs of the most progressive nationsto speak of ' government by public opinion, ' ' government by thepopular voice '; and such phrases possibly describe sufficientlywell the full-grown democratic systems. But no one intends suchexpressions to conceal the fact that the majority, which utters' public opinion, ' does not prevail because the minority are convinced, but because they are outnumbered and have against themnot the ' popular voice ' only, but the ' popular power ' as well,that it is the potential might rather than the wisdom of the majority which gives it its right to rule. When once majoritieshave learned to have opinions and to organize themselves for enforcing them, they rule by virtue of power no less than do despots.with standing armies or concerting minorities dominating unorganized majorities. But, though it was clearly opinion whichruled in primitive societies, this conception of the might ofmajorities hardly seems to fit our ideas of primitive systems ofMinorities rebusentation .Do majorities govern574 NATURE AND FORMS OF GOVERNMENT.government. What shall we say of them in connection with ourpresent analysis of government? They were neither democraciesin which the will of majorities chose the ways of government,nor despotisms, in which the will of an individual controlled, noroligarchies, in which the purposes of a minority prevailed.Where shall we place the force which lay behind the authorityexercised under them? Was the power of the father in the patriarchal family power of arm, mere domineering strength of will?What was the force that sustained the authority of the tribalchieftain or of that chief of chiefs, the king? That authoritywas not independent of the consent of those over whom it wasexercised; and yet it was not formulated by that consent. Thatconsent may be said to have been involuntary, inbred. It wasborn of the habit of the race. It was congenital. It consistedof a custom and tradition, moreover, which bound the chief noless than it bound his subjects . He might no more transgress theunwritten law of the race than might the humblest of his fellowtribesmen. He was governed scarcely less than they were. Allwere under bondage to strictly prescribed ways of life . Where,then, lay the force which sanctioned the authority of chief andsub-chief and father in this society? Not in the will of theruler: that was bound by the prescriptions of custom. Not inthe popular choice: over that too the law of custom reigned .1390. The Force of the Common Will in Ancient Society. - Thereal residence of force in such societies as these can be most easilydiscovered if we look at them under other circ*mstances. Nationsstill under the dominion of customary law have within historicaltimes been conquered by alien conquerors; but in no such casedid the will of the conqueror have free scope in regulating theaffairs of the conquered. Seldom did it have any scope at all.The alien throne was maintained by force of arms, and taxes weremercilessly wrung from the subject populations; but never didthe despot venture to change the customs of the conquered land.Its native laws he no more dared to touch than would a prince ofthe dynasty which he had displaced . He dared not play withthe forces latent in the prejudices, the fanaticism of his subjects.He knew that those forces were volcanic, and that no prop ofarmed men could save his throne from overthrow and destructionSepoy Rebellion.NATURE AND FORMS OF GOVERNMENT. 575-should they once break forth. He really had no authority togovern, but only a power to despoil, for the idea of governmentis inseparable from the conception of legal regulation. If, therefore, in the light of such cases, we conceive the throne of such asociety as occupied by some native prince whose authority restedupon the laws of his country, it is plain to see that the real forceupon which authority rests under a government so constituted isafter all the force of public opinion, in a sense hardly less vividlyreal than if we spoke of a modern democracy. The law inheresin the common will: and it is that law upon which the authorityof the prince is founded. He rules according to the commonwill: for that will is, that immemorial custom be inviolably observed. The force latent in that common will both backs andlimits his authority.1391. Public Opinion, Ancient and Modern. — The fact that thepublic opinion of such societies made no deliberate choice of lawsor constitutions need not confuse the analogy between that publicopinion and our own. Our own approval of the government underwhich we live, though doubtless conscious and in a way voluntary,is largely hereditary, is largely an inbred and inculcated approbation. There is a large amount of mere drift in it. Conformityto what is established is much the easiest habit in opinion. Ourconstructive choice even in our own governments, under whichthere is no divine canon against change, is limited to modifications. The generation that saw our federal system established--may have imagined themselves out- of-hand creators, originators Bryce of government; but we of this generation have taken what wasgiven us, and are not controlled by laws altogether of our ownmaking. Our constitutional life was made for us long ago. Weare like primitive men in the public opinion which preserves;though unlike them in the public opinion which alters our institutions. Their stationary common thought contained the genericforces of government no less than does our own progressive publicthought.1392. The True Nature of Government. What, then, in thelast analysis, is the nature of government? If it rests uponauthority and force, but upon authority which depends upon theacquiescence of the general will and upon force suppressed,576 NATURE AND FORMS OF GOVERNMENT.|latent, withheld except under extraordinary circ*mstances, whatprinciple lies behind these phenomena, at the heart of government? The answer is hidden in the nature of Society itself.Society is in no sense artificial; it is as truly natural and organic as the individual man himself. As Aristotle said, man isby nature a social animal; his social function is as normal withhim as is his individual function . Since the family was formed,he has not been without politics, without political association.Society, therefore, is compounded of the common habit and is anevolution of experience, an interlaced growth of tenacious rela- *tionships, a compact, living, organic whole, structural, notmechanical.1393. Society an Organism, Government an Organ. — Government is merely the executive organ of society, the organ throughwhich its habit acts, through which its will becomes operative,through which it adapts itself to its environment and works outfor itself a more effective life. There is clear reason, therefore,why the disciplinary action of society upon the individual isexceptional; clear reason also why the power of the despot mustrecognize certain ultimate limits and bounds; and clear reasonwhy sudden or violent changes of government lead to equally violent and often fatal reactions and revolutions. It is only the exceptional individual who is not held fast to the common habit ofsocial duty and comity. The despot's power, like the potter's,is limited by the characteristics of the materials in which heworks, of the society which he manipulates; and change whichroughly breaks with the common thought will lack the sympathyof that thought, will provoke its opposition, and will inevitably becrushed by that opposition. Society, like other organisms, can bechanged only by evolution, and revolution is the antipode ofevolution. The public order is preserved because order inheresin the character of society.1394. The Forms of Government: their Significance. Theforms of government do not affect the essence of government:the bayonets of the tyrant, the quick concert and superior forceof an organized minority, the latent force of a self-governedmajority, all these depend upon the organic character anddevelopment of the community. "The obedience of the subjectNATURE AND FORMS OF GOVERNMENT. 577to the sovereign has its root not in contract but in force, theforce of the sovereign to punish disobedience "; but that forcemust be backed by the general habit (secs. 1435-1442 ) . Theforms of government are, nevertheless, in every way most important to be observed, for the very reason that they express thecharacter of government, and indicate its history. They exhibitthe stages of political development, and make clear the necessaryconstituents and ordinary purposes of government, historicallyconsidered. They illustrate, too, the sanctions upon which it.rests.1395. Aristotle's Analysis of the Forms of Government. It hasbeen common for writers on politics in speaking of the severalforms of government to rewrite Aristotle, and it is not easy todepart from the practice. For, although Aristotle's enumerationwas not quite exhaustive, and although his descriptions will notquite fit modern types of government, his enumeration still servesas a most excellent frame on which to hang an exposition of theforms of government, and his descriptions at least furnish pointsof contrast between ancient and modern governments by observing which we can the more clearly understand the latter.1396. Aristotle considered Monarchy, Aristocracy, and Democracy (Ochlocracy) the three standard forms of government.The first he defined as the rule of One, the second as the rule ofthe Few, the third as the rule of the Many. Off against thesestandard and, so to say, healthful forms he set their degenerateshapes. Tyranny he conceived to be the degenerate shape ofMonarchy, Oligarchy the degenerate shape of Aristocracy, andAnarchy (or mob-rule) the degenerate shape of Democracy. Hisobservation of the political world about him led him to believethat there was in every case a strong, an almost inevitable, tendency for the pure forms to sink into the degenerate.-1397. The Cycle of Degeneracy and Revolution. He outlineda cycle of degeneracies and revolutions through which, as heconceived, every State of long life was apt to pass. His ideawas this. The natural first form of government for every state1 John Morley, Rousseau, Vol. II. , p. 184 .2 Not of the absolute majority, as we shall see presently when contrastingancient and modern democracy ( secs . 1403, 1406) .578 NATURE AND FORMS OF GOVERNMENT.would be the rule of a monarch, of the single strong man with.sovereign power. This monarch would usually hand on his kingdom to his children . They might confidently be expected to forget those pledges and those views of the public good which hadbound and guided him. Their sovereignty would sink intotyranny. At length their tyranny would meet its decisive checkat some Runnymede. There would be revolt; and the princelyleaders of revolt, taking government into their own hands, wouldset up an Aristocracy. But aristocracies, though often publicspirited and just in their youth, always decline, in their lateryears, into a dotage of selfish oligarchy. Oligarchy is even morehateful to civil liberty, is even a graver hindrance to healthfuicivil life than tyranny. A class bent upon subserving only theirown interests can devise injustice in greater variety than can asingle despot: and their insolence is always quick to goad themany to hot revolution . To this revolution succeeds Democracy.But Democracy too has its old age of degeneracy, an old age inwhich it loses its early respect for law, its first amiability ofmutual concession . It breaks out into license and Anarchy, andnone but a Cæsar can bring it back to reason and order. Thecycle is completed . The throne is set up again, and a new seriesof deteriorations and revolutions begins.-1398. Modern Contrasts to the Aristotelian Forms of Government. The confirmations of this view furnished by the historyof Europe since the time of Aristotle have been striking andnumerous enough to render it still oftentimes convenient as ascheme by which to observe the course of political history evenin our own days. But it is still more instructive to contrast thelater facts of political development with this ancient expositionof the laws of politics. Observe, then, the differences betweenmodern and ancient types of government, and the likelihood thatthe historian of the future, if not of the present and the immediate past, will have to record more divergencies from the cycleof Aristotle than correspondences with it.1399. The Modern Absolute Monarchy. Taking the Russiangovernment of to-day as a type of the vast absolute Monarchieswhich have grown up in Europe since the death of Aristotle, itis evident that the modern monarch, if he be indeed monarch, hasNATURE AND FORMS OF GOVERNMENT. 579Medes a much deeper and wider reach of power than had the ancientmonarch. The monarch of our day is a Legislator; the ancientmonarch was not. Antique society may be said hardly to haveand assianErnd known what legislation was. Custom was for it the law of public as well as of private life: and custom could not be enacted.At any rate ancient monarchies were not legislative . The despot issued edicts, imperative commands covering particularcases or affecting particular individuals: the Roman emperorswere among the first to promulgate ' constitutions, ' generalrules of law to be applied universally. The modern despot cando more even than that. He can regulate by his command public affairs not only but private as well, can even upset localcustom and bring all his subjects under uniform legislative control . Nor is he in the least bound to observe his own laws. Aword, and that his own word, will set them aside: a wordwill abolish, a word restore, them. He is absolute over his subjects not only, ancient despots were that, but over all laws.also, which no ancient despot was.--―- Вилений1400. Of course these statements are meant to be taken with certainimportant limitations. The modern despot as well as the ancient is boundby the habit of his people. He may change laws, but he may not changelife as easily; and the national traditions and national character, therural and commercial habit of his kingdom, bind him very absolutely.The limitation is not often felt by the monarch, simply because he hashimself been bred in the atmosphere of the national life and unconsciouslyconforms to it (secs. 1435–1442) .1401. The Modern Monarchy usually ' Limited. ' But the present government of Russia is abnormal in the Europe of to- day,as abnormal as that of the Turk, -a belated example of thosecrude forms of politics which the rest of Europe has outgrown.Turning to the other monarchies of to-day, it is at once plainthat they present the strongest contrast possible to any absolutemonarchy ancient or modern. Almost without exception inEurope, they are ' limited ' by the resolutions of a popular parliament. The people have a distinct and often an imperative voicein the conduct of public affairs .1402. Is Monarchy now succeeded by Aristocracy? And whatis to be said of Aristotle's cycle in connection with modern monThis is the reason that the reallife of people does not differ so muesunder different govemmits as methinkThe French Rev, overthrew bothMonarchy and Aristocracy.580 NATURE AND FORMS OF GOVERNMENT.archies? Does any one suppose it possible that when the despotism of the Czar falls it will be succeeded by an aristocracy;or that when the modified authority of the emperors of Austriaand Germany or the king of Italy still further exchanges substance for shadow, a limited class will succeed to the reality ofpower? Is there any longer any place between Monarchy andDemocracy for Aristocracy? Has it not been crowded out?An1403. English and Ancient Aristocracy contrasted. Indeed,since the extension of the franchise in England to the workingclasses, no example of a real Aristocracy is left in the modernworld. At the beginning of this century the government of England, called a ' limited monarchy, ' was in reality an Aristocracy.Parliament and the entire administration of the kingdom werein the hands of the classes having wealth or nobility. The members of the House of Lords and the Crown together controlled amajority of the seats in the House of Commons. England was' represented ' by her upper classes almost exclusively. ThatAristocracy has been set aside by the Reform Bills of 1832,1867, and 1885; but it is worth while to look back to it, inorder to contrast a modern type of Aristocracy with those ancientaristocracies which were present to the mind of Aristotle.ancient Aristocracy constituted the State; the English aristocracymerely controlled the State. Under the widest citizenship knowneven to ancient democracy less than half the adult male subjectsof the State shared the franchise. The ancient Democracy itselfwas a government by a minority. The ancient Aristocracy wasa government by a still narrower minority; and this narrowminority monopolized office and power not only, but citizenshipas well. There were no citizens but they. They were the State.Every one else existed for the State, only they were part of it.In England the case was very different. There the franchisewas not confined to the aristocrats; it was only controlled bythem . Nor did the aristocrats of England consider themselvesthe whole of the State. They were quite conscious, and quitecontent, that they had the State virtually in their possession;but they looked upon themselves as holding it in trust for thepeople of Great Britain. Their legislation was in fact classlegislation, oftentimes of a very narrow sort; but they did not--NATURE AND FORMS OF GOVERNMENT. 581think that it was. They regarded their rule as eminently advantageous to the kingdom; and they unquestionably had, or triedto have, the real interests of the kingdom at heart. They led theState, but did not constitute it.1404. Present and Future Prevalence of Democracy. IfAristocracy seems about to disappear, Democracy seems aboutuniversally to prevail. Ever since the rise of popular education?in the last century and its vast development since have assureda thinking weight to the masses of the people everywhere, theadvance of democratic opinion and the spread of democraticinstitutions have been most marked and most significant. Theyhave destroyed almost all pure forms of Monarchy and Aristocracy by introducing into them imperative forces of popularthought and the concrete institutions of popular representation;and they promise to reduce politics to a single form by excludingall other governing forces and institutions but those of a wide suffrage and a democratic representation, by reducing all formsof government to Democracy.--------tation1405. Differences of Form between Ancient and ModernDemocracies. - The differences of form to be observed betweenancient and modern Democracies are wide and important.Ancient Democracies were ' immediate,' while ours are ' mediate, 'that is to say, representative. Every citizen of the AthenianState, to take that as a type, had a right to appear and votein proper person in the popular assembly, and in those committees of that assembly which acted as criminal courts; themodern voter votes for a representative who is to sit for him inthe popular chamber, - he himself has not even the right ofentrance there. This idea of representation, even the idea of avote by proxy, was hardly known to the ancients; but among usit is all-pervading. Even the elected magistrate of an ancientDemocracy was not looked upon as a representative of his fellowcitizens. He was the State, so far as his functions went, and solong as his term of office lasted. He could break through alllaw or custom, if he dared. It was only when his term hadexpired and he was again a private citizen that he could becalled to account. There was no impeachment while in office .To our thought all elected to office, whether Presidents,-582 NATURE AND FORMS OF GOVERNMENT.?ministers, or legislators, are representatives. The limitationsas to the size of the State involved in ancient practices andconceptions is obvious. A State in which all citizens are alsolegislators must of necessity be small. The modern representative State has no such limitation. It may cover a continent.1406. Nature of Democracy, Ancient and Modern. Thedifferences of nature to be observed between ancient and modern Democracies are no less wide and important. The ancientDemocracy was a class government. As already pointed out,it was only a broader Aristocracy. Its franchise was at widestan exclusive privilege, extending only to a minority. Therewere slaves under its heel; there were even freedmen whocould never hope to enter its citizenship. Class subordinationwas of the essence of its constitution. From the modern Democratic State, on the other hand, both slavery and class subordination are excluded as inconsistent with its theory, not only, but,more than that, as antagonistic to its very being. Its citizenshipis as wide as its native population; its suffrage as wide as itsqualified citizenship, it knows no non-citizen class. Andthere is still another difference between the Democracy ofAristotle and the Democracy of Tocqueville and Bentham. Thecitizens of the former lived for the State; the citizen of thelatter lives for himself, and the State is for him. The modernDemocratic State exists for the sake of the individual; the individual, in Greek conception, lived for the State. The ancientState recognized no personal rights, all rights were Staterights; the modern State recognizes no State rights which areindependent of personal rights.61407. Growth of the Democratic Idea. In making the laststatement embrace the ancient State ' irrespective of kind and'the modern State,' of whatever form, I have pointed out whatmay be taken as the cardinal difference between all the ancientforms of government and all the modern. It is a differencewhich I have already stated in another way. The democraticidea has penetrated more or less deeply all the advanced systemsof government, and has penetrated them in consequence of thatchange of thought which has given to the individual an importance quite independent of his membership of a State. I canNATURE AND FORMS OF GOVERNMENT. 583here only indicate the historical steps of that change of thought;I cannot go at any length into its causes.―1408. Subordination of the Individual in the Ancient State. --We have seen that, in the history of political society, if we haveread that history aright, the rights of government, the magistracies and subordinations of kinship, antedate what we nowcall the rights of the individual. A man was at first nobody inhimself; he was only the kinsman of somebody else. The fatherhimself, or the chief, commanded only because of priority inkinship: to that all rights of all men were relative. Society wasthe unit; the individual the fraction. Man existed for society.He was all his life long in tutelage; only society was old enoughto take charge of itself. The State was the only Individual.1409. Individualism of Christianity and Teutonic Institutions. There was no essential change in this idea for centuries. Through all the developments of government down to thetime of the rise of the Roman Empire the State continued, inthe conception of the western nations at least, to eclipse theindividual. Private rights had no standing as against the State.Subsequently many influences combined to break in upon thisimmemorial conception. Chief among these influences wereChristianity and the institutions of the German conquerors ofthe fifth century. Christianity gave each man a magistracy overhimself by insisting upon his personal, individual responsibilityto God. For right living, at any rate, each man was to have onlyhis own conscience as a guide. In these deepest matters theremust be for the Christian an individuality which no claim of hisState upon him could rightfully be suffered to infringe. TheGerman nations brought into the Romanized and partially Christianized world of the fifth century an individuality of anothersort, the idea of allegiance to individuals (sec. 293). Perhapstheir idea that each man had a money-value which must be paidby any one who might slay him also contributed to the process ofmaking men units instead of State fractions; but their idea ofpersonal allegiance played the more prominent part in the transformation of society which resulted from their western conquests.The Roman knew no allegiance save allegiance to his State. Heswore fealty to his imperator as to an embodiment of that State,-584 NATURE AND FORMS OF GOVERNMENT.2.Caesar changed irat.V. not as to an individual. The Teuton, on the other hand, boundhimself to his leader by a bond of personal service which theRoman either could not understand or understood only to despise.There were, therefore, individuals in the German State: greatchiefs or warriors with a following (comitatus) of devoted volunteers ready to die for them in frays not directed by the State, butof their own provoking (secs. 291-293) . There was with allGerman tribes freedom of individual movement and combinationwithin the ranks, a wide play of individual initiative. Whenthe German settled down as master amongst the Romanized populations of western and southern Europe, his thought was led captive by the conceptions of the Roman law, as all subsequentthought that has known it has been, and his habits were muchmodified by those of his new subjects; but this strong elementof individualism was not destroyed by the contact. It lived toconstitute one of the chief features of the Feudal System.1410. The Transitional Feudal System.The Feudal Systemwas made up of elaborate gradations of personal allegiance.The only State possible under that system was a disintegratestate embracing, not a unified people, but a nation atomized intoits individual elements. A king there might be, but he was lord,not of his people, but of his barons. He was himself a baron also,and as such had many a direct subject pledged to serve him; butas king the barons were his only direct subjects; and the baronswere heedful of their allegiance to him only when he could makeit to their interest to be so, or their peril not to be. They werethe kings of the people, who owed direct allegiance to themalone, and to the king only through them. Kingdoms were onlygreater baronies, baronies lesser kingdoms. One small part ofthe people served one baron, another part served another baron.As a whole they served no one master. They were not a whole:they were jarring, disconnected segments of a nation. Everyman had his own lord, and antagonized every one who had notthe same lord as he (secs. 304–313) .1411. Rise of the Modern State. Such a system was fatal topeace and good government, but it cleared the way for the riseof the modern State by utterly destroying the old conceptions.The State of the ancients had been an entity in itself, - an entityMy inmilitant vs. industrial organization.NATURE AND FORMS OF GOVERNMENT. 585to which the entity of the individual was altogether subordinate.The Feudal State was merely an aggregation of individuals, -a loose bundle of separated series of men knowing few commonaims or actions. It not only had no actual unity: it had nothought of unity. National unity came at last, in France, forinstance, by the subjugation of the barons by the king (sec. 323);in England by the joint effort of people and barons against thethrone, but when it came it was the ancient unity with a difference. Men were no longer State fractions; they had become Stateintegers. The State seemed less like a natural organism and morelike a deliberately organized association . Personal allegiance tokings had everywhere taken the place of native membership ofa body politic . Men were now subjects, not citizens.1412. Renaissance and Reformation. -Presently came thethirteenth century with its wonders of personal adventure andindividual enterprise in discovery, piracy, and trade. Following hard upon these, the Renaissance woke men to a philosophical study of their surroundings, and above all of their longtime unquestioned systems of thought. Then arose Luther toreiterate the almost forgotten truths of the individuality of men'sconsciences, the right of individual judgment. Ere long the newthoughts had penetrated to the masses of the people. Reformershad begun to cast aside their scholastic weapons and come downto the common folk about them, talking their own vulgar tongueand craving their acquiescence in the new doctrines of deliverance from mental and spiritual bondage to Pope or Schoolman.National literatures were born. Thought had broken away fromits exclusion in cloisters and universities and had gone out tochallenge the people to a use of their own minds. By using theirminds, the people gradually put away the childish things of theirdays of ignorance, and began to claim a part in affairs . Finally,systematized popular education has completed the story. Nationsare growing up into manhood. Peoples are becoming old enoughto govern themselves.1413. The Modern Force of Majorities. It is thus no accident, but the outcome of great permanent causes, that there is nomore to be found among the civilized races of Europe any satisfactory example of Aristotle's Monarchies and Aristocracies.586 NATURE AND FORMS OF GOVERNMENT.The force of modern governments is not now often the force ofminorities. It is getting to be more and more the force of majorities. The sanction of every rule not founded upon sheer militarydespotism is the consent of a thinking people. Military despotisms are now seen to be necessarily ephemeral. Only monarchswho are revered as seeking to serve their subjects are any longersafe upon their thrones. Monarchies exist only by democraticconsent.-1414. New Character of Society. And, more than that, theresult has been to give to society a new integration . The common habit is now operative again, not in acquiescence and submission merely, but in initiative and progress as well. Societyis not the organism it once was, its members are given freerplay, fuller opportunity for origination; but its organic characteris again prominent. It is the Whole which has emerged fromthe disintegration of feudalism and the specialization of absolute monarchy. The Whole, too, has become self-conscious, andby becoming self- directive has set out upon a new course ofdevelopment.XIV.LAW: ITS NATURE AND DEVELOPMENT.1415. What is Law? - Law is the will of the State concerningthe civic conduct of those under its authority This will may bemore or less formally expressed: it may speak either in customor in specific enactment. Law may, moreover, be the will eitherof a primitive family- community such as we see in the earliestperiods of history, or of a highly organized, fully self-consciousState such as those of our own day. But for the existence ofLaw there is needed in all cases alike (1) an organic communitycapable of having a will of its own, and (2) some clearly recognized body of rules to which that community has, whether bycustom or enactment, given life, character, and effectiveness .Law is that portion of the established thought and habit whichhas gained distinct and formal recognition in the shape of uniformrules backed by the authority and power of Government. Thenature of each State, therefore, will be reflected in its law; inits law, too, will appear the functions with which it chargesitself; and in its law will it be possible to read its history.- 1416. The Development of Law: its Sources. Law thus followsin its development, with slow, sometimes with uneven, but generally with quite certain steps, the evolution of the character,the purposes, and the will of the organized community whosecreation it is . The sources whence it springs are as various asthe means by which an organic community can shape and expressits will as a body politic.1417. 1. Custom.¹ The earliest source of Law is Custom, andcustom is formed no one can say definitely how, except that it .1 I adopt here the classification usual in English writings on Jurisprudence.See, e.g. , T. E. Holland, Jurisprudence, pp. 48 et seq.587588 LAW: ITS NATURE AND DEVELOPMENT.luzyis shaped by the coöperative action of the whole community, andnot by any kingly or legislative command. It is not formedalways in the same way; but it always rests upon the samefoundation, upon the general acceptance of a certain course ofaction as best or most convenient. Whether custom originate inthe well-nigh accidental formation of certain habits of action orin a conscious effort on the part of a community to adjust itspractices more perfectly to its social and political objects, itbecomes, when once it has been formed and accepted by the publie authority, a central part of Law. It is difficult, if not impossible, to discover the exact point at which custom passes fromthe early inchoate state in which it is merely tending to becomethe express and determinate purpose of a community into thelater stage in which it becomes Law; but we can say with assurance that it becomes Law only when it wins the support of adefinite authority within the community. It is not Law if menfeel free to depart from it.1418. Under the reign of customary law that state of things actuallydid exist which modern law still finds it convenient to take for granted:everybody knew what the law was. The Teutonic hundred-moots, forexample (sec. 835) , the popular assemblies which tried cases under theearly polity of our own ancestors, declared the law by the public voice;the people themselves determined what it was and how it should beapplied. Custom grew up in the habits of the people; they consciouslyor unconsciously originated it; to them it was known and by them it wasdeclared.1419. 2. Religion . In the earliest times Custom and Religion were almost indistinguishable; a people's customs bore onevery lineament the likeness of its religion. And in later stagesof development Religion was still a prolific source of Custom.No primitive community contained any critic who could, even inhis secret thought, separate Law from Religion . All rules of lifebore for the antique mind the same sanction (sec. 26) . Therewere not in its conception rules moral and rules political: politics, morals, and religion were indistinguishable parts of onegreat indivisible Law of Conduct. Religion and Politics verysoon, it is true, came to have different ministers. In name often,if not always in fact, the priest was distinct from the magistrate.LAW: ITS NATURE AND DEVELOPMENT. 589But throughout a very long development, as we have seen (secs.46, 53, 120, 250), the magistrate either retained priestly functions or was dominated by rules which the priest declared and ofwhich the priest was the custodian.1420. Thus the early law of Rome was little more than a body of technical religious rules, a system of means for obtaining individual rights throughthe proper carrying out of certain religious formulæ (sec. 250); and itmarked the beginning of the movement of Roman law towards a broadand equitable system of justice when these rules of procedure werechanged from sacerdotal secrets into published law by the publication ofthe Twelve Tables.-1421. 3. Adjudication. One of the busiest and one of themost useful, because watchful, open-minded, and yet conservative, makers of Law under all systems has been the magistrate,the Judge. It is he who in his decisions recognizes and adoptsCustom, and so gives it the decisive support of the public power;it is he who shapes written enactments into suitability to individual cases and thus gives them due flexibility and a free development. He is the authoritative voice of the community inSom by giving specific application to its Law: and in doing this he necessarily becomes , because an interpreter, also a maker of Law.junctionWhether deliberately or unconsciously, in expounding and applying he moulds and expands the Law. It is his legitimatefunction to read Law in the light of his own sober and conscientious judgment as to what is reasonable and just in custom,what practicable, rational, or equitable in legislation .1422. It is this judge-made ' law which is to be found, and is therefore so diligently sought for, in the innumerable law Reports cited in ourcourts. Except under extraordinary circ*mstances, our courts and thoseof England will always follow decisions rendered in similar cases bycourts of equal jurisdiction in the same state. Afortiori do they followthe decisions of the highest courts: by these they are in a sense bound.In the courts of the continent of Europe, on the other hand, decisions arelistened to as important expressions of opinion, but not as conclusiveauthority are heard much as our own courts or those of England hearthe decisions of courts of other states acting under like laws or similarcirc*mstances.

- 1423. 4. Equity. Equity too is judge-made Law; but it ismade, not in interpretation of, but in addition to, the laws whichStatutes590 LAW ITS NATURE AND DEVELOPMENT.already exist. The most conspicuous types of such Law are thedecisions of the Roman Prætor (secs. 258-260) and those of theEnglish Chancellor (sec. 847) . These decisions were meant to giverelief where existing law afforded none. The Prætor declared, forinstance, that he would allow certain less formal processes thanhad hitherto been permitted to secure rights of property or of contract, of marriage or of control, etc. The English Chancellor, inlike manner, as keeper of the king's judicial conscience, suppliedremedies in cases for which the Common Law had no adequateprocesses, and thus relieved suitors of any hardships they mightotherwise have suffered from the fixity or excessive formality ofthe Common Law, and enabled them in many things to obtaintheir substantial rights without technical difficulty.Dur own comity,JunesAfter the official decrees of the Prætors had been codified bythe Prætor Salvius Iulianus, in the time of the Emperor Hadrian, andstill more after they had been embodied in the Code of Justinian, theCorpus Juris Civilis, the Prætor's equity ' became as rigid and determinate as the law which it had been its function to mend and ameliorate.In the same manner, our own state codes, many of which have fusedlaw and equity in the same courts and under common forms of procedure(sec. 1164 ) , have given equity the sanction and consequently the fixity ofwritten law. The English Judicature Act, also , of 1873, merging, as itdoes, the common-law and equity courts into a single hom*ogeneous system (sec. 920 ) , shows at least that a strong tendency in the same directionexists in England. The adjustments of Equity are less needed now thatlegislation is constantly active in mending old and creating new law and,when necessary, new procedure .1425. In the same case with Equity must be classed the numerous socalled fictitious actions ' which were the invention of the common-lawcourts and which, by means of imaginary suitors or imaginary transactions, duly recorded as if real, enabled things to be done and rightsacquired which would have been impossible under any genuine processof the Common Law.1426. 5. Scientific Discussion . The carefully formed opinionsof learned text- writers have often been accepted as decisive ofthe Law: more often under the Roman system, however, thanunder our own (secs. 273-277) , though even we have our co*kes,our Blackstones, our Storys, and our Kents, whom our courtshear with the greatest possible respect. It is the proper function of legal science to interpret the law, not piecemeal, as theLAW ITS NATURE AND DEVELOPMENT. 591courts must, but in such way as to bring all its parts to their fulldevelopment as doctrine and to their complete adjustment asmembers of a living system of thought and practice; to give thelaw system, study the conditions and forms of its genesis anddevelopment, and assist courts and legislatures alike in theirfunctions of adaptation and creation. mou.1427. 6. Legislation. — That deliberate formulation of newLaw to which the name Legislation is given is, for us of themodern time, the most familiar as well as the most prolificsource of Law. For us Legislation is the work of representative bodies almost exclusively; but representation is no partof the essential character of the legislative act.Absolute magistrates or kings have in all stages of history been, under onesystem or another, makers of laws. Whether acting under thesanction of custom or under the more artificial arrangements ofhighly developed constitutions, father or prætor, king or archonhas been a lawgiver. So, too, the assemblies of free men which,alike in Greece and in Rome, constituted the legislative authoritywere not representative, but primary bodies, like the Landsgemeinden of the smaller Swiss cantons.1428. Representation came in with the Germans; and with thecritical development of institutions which the modern world hasseen many new phases of Legislation have appeared. Modernlaw has brought forth those great private corporations whosebye- laws are produced by what may very fitly be called privatelegislative action . We have, too, on the same model, charteredgovernments, with legislatures acting under special grants oflaw-making power (secs. 1024, 1088, 1089, 1092, 1369) . Legislation has had and is having a notable development, and is nowthe almost exclusive means of the formulation of new Law.Custom of the older sort, which gave us the great Common Law,has been in large part superseded by acts of legislation; Religionstands apart, giving law only to the conscience; Adjudication isbeing more and more restricted by codification; Equity is beingmerged in the main body of the Law by enactment; ScientificDiscussion now does hardly more than collate cases: all meansof formulating Law tend to be swallowed up in the one great,deep, and broadening source, Legislation .592 LAW ITS NATURE AND DEVELOPMENT.—1429. Custom again. Custom at last enters again, with anew aspect and a new method. After judges have become theacknowledged and authoritative mouthpieces of Equity and ofthe interpretative adaptation of customary or enacted Law; afterscientific writers have been admitted to power in the systematicelucidation and development of legal principles; even after themajor part of all law- making has fallen to the deliberate action.of legislatures, given liberal commission to act for the community, Custom still maintains a presiding and even an imperativepart in legal history. It is Custom, the silent and unconcertedbut none the less prevalent movement, that is, of the commonthought and action of a community, which recognizes changes ofcirc*mstance which judges would not, without its sanction, feel,or be, at liberty to regard in the application of old enactments,and which legislators have failed to give effect to, by repeal ornew enactment. Laws become obsolete because silent but observant and imperative Custom makes evident the deadness of theirletter, the inapplicability of their provisions. Custom, too,never ceases to build up practices legal in their character and yetwholly outside formal Law, constructing even, in its action onCongresses and Parliaments, great parts of great constitutions(secs. 871, 1326, 1334, 1335) . It constantly maintains the greatforces of precedent and opinion which daily work their will,under every form of government, upon both the contents and theadministration of Law. Custom is Habit under another name;and Habit in its growth, while it continually adjusts itself tothe standard fixed in formal Law, also slowly compels formalLaw to conform to its abiding influences. Habit may be said tobe the great Law within which laws spring up. Laws can extendbut a very little way beyond its limits. They may help it togradual extensions of its sphere and to slow modifications of itspractices, but they cannot force it abruptly or disregard it at allwith impunity.1430. The history of France during the present century affords anoteworthy example of these principles in the field of constitutional law.There we have witnessed this singular and instructive spectacle: a peoplemade democratic in thought by the operation of a speculative politicalphilosophy has adopted constitution after constitution created in theLAW: ITS NATURE AND DEVELOPMENT. 593----exact image of that thought. But they had, to begin with, absolutely nodemocratic habit, no democratic custom. Gradually that habit hasgrown, fostered amidst the developments of local self- direction; andthe democratic thought has penetrated , wearing the body of practice, itsonly vehicle to such minds, to the rural populace. Constitutions andcustom have thus advanced to meet one another, - constitutions compelledto adopt precedent rather than doctrine as their basis, thought, practicalexperience rather than the abstract conceptions of philosophy; and habitconstrained to receive the suggestions of written law. Now, therefore, inthe language of one of her own writers, France has " a constitution themost summary in its text " (leaving most room, that is , for adjustments) ,"the most customary in its application, the most natural outcome of ourmanners and of the force of circ*mstances " that she has yet possessed.¹Institutions too theoretical in their basis to live at first , have neverthelessfurnished an atmosphere for the French mind and habit: that atmospherehas affected the life of France, —that life the atmosphere. The resultsome day to be reached will be normal liberty, political vitality and vigor,civil virility.1431. Typical Character of Roman and English Law. - Romanlaw and English law are peculiar among the legal systems ofwestern Europe for the freedom and individuality of their development. Rome's jus civile was, indeed, deeply modified throughthe influence of the jus gentium; it received its philosophy fromGreece, and took some color from a hundred sources; and Englishlaw, despite the isolation of its island home, received its jurysystem and many another suggestion from the Continent, and hasbeen much, even if unconsciously, affected in its development bythe all-powerful law of Rome. But English and Roman law alikehave been much less touched and colored than other systems byoutside influences, and have presented to the world what may betaken as a picture of the natural, the normal, untrammelled evolution of law.-1432. The Order of Legal Development. As tested by the history of these systems, the order in which I have placed theSources of Law is seen to be by no means a fixed order of historical sequence.Custom is, indeed, the earliest fountain of Law,but Religion is a contemporary, an equally prolific, and in somestages of national development an almost identical source; Adjudication comes almost as early as authority itself, and from a1 Albert Sorel, Montesquieu (Am. trans. ) , pp. 200, 201 .594 LAW ITS NATURE AND DEVELOPMENT.very antique time goes hand in hand with Equity. Only Legislation, the conscious and deliberate origination of Law, and Scientific Discussion, the reasoned development of its principles,await an advanced stage of growth in the body politic to asserttheir influence in law-making. In Rome, Custom was hardlyseparable from Religion, and hid the knowledge of its principlesin the breasts of a privileged sacerdotal class; among the English,on the contrary, Custom was declared in folk-moot by the voiceof the people, as possibly it had been among the ancestors ofthe Romans. In both Rome and England there was added to theinfluence of the magistrate who adopted and expanded Customin his judgments the influence of the magistrate (Prætor orChancellor) who gave to Law the flexible principles and practicesof Equity. And in both, Legislation eventually became the onlysource of Law.-1433. But in Rome Legislation grew up under circ*mstancesentirely Roman, to which English history can afford no parallel.Rome gave a prominence to scientific discussion such as nevergladdened the hearts of philosophical lawyers in England. Theopinions of distinguished lawyers were given high, almost conclusive, authority in the courts; and when the days of codification.came, great texts as well as great statutes and decrees wereembodied in the codes of the Empire. The legislation of thepopular assemblies, which Englishmen might very easily haverecognized, was superseded in the days of the Empire by imperial edicts and imperial codes such as the history of English legislation nowhere shows; and over the formulation of these codesand edicts great jurists presided . The only thing in Englishlegal practice that affords a parallel to the influence of lawyersin Rome is the cumulative authority of judicial opinions. Thatextraordinary body of precedent, which has become as much apart of the substance of English law as are the statutes of therealm, may be considered the contribution of the legal professionto the law of England.1434. Savigny would have us seek in the history of every people for achildhood in which law is full of picturesque complexities, a period ofform for form's sake and of symbols possessed of mystic significance;a period of adolescence in which a special class of practical jurists makeLAW ITS NATURE AND DEVELOPMENT. 5956).their appearance and law begins to receive a conscious development; afull young manhood in which legislation plies a busy work of legal expansion and improvement; and an old age amusing itself with external andarbitrary changes in legal systems, and finally killed by the letter of the law.1 火-1435. The Forces Operative in the Development of Law. Theforces that create and develop law are thus seen to be the sameas those which are operative in national and political development. If that development bring forth monarchical forms ofgovernment, if the circ*mstances amidst which a people's life iscast eradicate habits of local self- rule and establish habits of submission to a single central authority set over a compacted state,that central authority alone will formulate and give voice to Law.If, on the other hand, the national development be so favorablycast that habits of self- reliance and self- rule are fostered and confirmed among the people, along with an active jealousy of any toogreat concentration of only partially responsible power, Law willmore naturally proceed, through one instrumentality or another,from out the nation: vox legis, vox populi. But in the one casehardly less than in the other Law will express, not the arbitrary,self- originative will of the man or body of men by whom it is formulated, but such rules as the body of the nation is prepared byreason of its habits and fixed preferences to accept. The function of the framers of Law is a function of interpretation, offormulation rather than of origination: no step that they cantake successfully can lie far apart from the lines along whichthe national life has run. Law is the creation, not of individuals, but of the special needs, the special opportunities, thespecial perils or misfortunes of communities. No ' law- maker 'may force upon a people Law which has not in some sense beensuggested to him by the circ*mstances or opinions of the nationfor whom he acts. Rulers, in all states alike, exercise the sovereignty of the community, but cannot exercise any other. Thecommunity may supinely acquiesce in the power arrogated tohimself by the magistrate, but it can in no case really make himindependent of itself.1 Bluntschli, Geschichte der neueren Staatswissenschaft, ed . 1881 , pp. 627,628.•1. Philips.InPickey and Expansion .596 LAW ITS NATURE AND DEVELOPMENT.South1436. Here again France furnishes our best illustration. We have avivid confirmation of the truths stated in such an event as the establishment of the Second Empire. The French people were not duped byLouis Napoleon. The facts were simply these. They were keenly conscious that they were making a failure of the self-government which theywere just then attempting; they wanted order and settled rule in place offear of revolution and the certainty of turbulent politics; and they tookthe simplest, most straightforward and evident means of getting what theywanted. The laws of Napoleon were in a very real sense their own creation.1437. The Power of the Community must be behind Law.The law of some particular state may seem to be the command ofa minority only of those who compose the state: it may even inform utter only the will of a single despot; but in reality lawswhich issue from the arbitrary or despotic authority of the fewwho occupy the central seats of the state can never be given fulleffect unless in one form or another the power of the communitybe behind them. Whether it be an active power organized tomove and make itself prevalent or a mere inert power lying passive as a vast immovable buttress to the great structure of absolute authority, the power of the community must support law orthe law must be without effect. The bayonets of a minority cannot long successfully seek out the persistent disobediences of themajority. The majority must acquiesce or the law must be null.1438. This principle is strikingly illustrated in the inefficacy of theEnglish repressive laws in Ireland . The consent of the Irish communityis not behind them, though the strength of England is; and they failutterly, as all laws must which lack at least the passive acquiescence ofthose whom they concern.1439. There can be no reasonable doubt that the power of Russia'sCzar, vast and arbitrary as it seems, derives its strength from the Russianpeople. It is not the Czar's personal power; it is his power as head ofthe national church, as semi-sacred representative of the race and itshistorical development and organization. Its roots run deep into thetenacious, nourishing soil of immemorial habit . The Czar represents ahistory, not a caprice. Temporary, fleeting despots, like the first Napoleon, lead nations by the ears, playing to their love of glory , to their senseof dignity and honor, to their ardor for achievement and their desire fororder.1440. Both a Mirror of Conceptions and an Active Force.Looked at from an abstract point of view, Law is a body of prinjár may Live!lawLAW ITS NATURE AND DEVELOPMENT. 597ciples, and as such constitutes a mirror of the prevalent conceptions as to ethical standards and social relationships in thecommunities in which it is accepted. But Law is also an activeforce, an expression of will . It is not merely a body of opinion;it is also a body of practical rules in operation. It is operativein two ways. It exercises both an ethical and a physical compulsion. It involves (1) , an Ought, in proportion as it is received.as just or expedient. It is a source of conviction and motive inproportion as it is accepted as true. This ethical force is its principal force, its force for the majority. It is daily influential inmoving men to do even what they conceive to be contrary to theirindividual interests. And this even when it is unjust in parts,provided it be deemed sound and just as a whole. (2) For theminority, who do not yield to its moral force or feel its moralcompulsions, it involves a Must, and speaks harshly of the powerof the state. That power is not great enough to venture to sayYou must' to a prevalent majority of any people. In cases ofconquest, it is true, like that of the Normans in England, anactual physical compulsion may be operative for long periods together even against a numerical majority, and the law may seemto possess an ethical force only for the minority. But generallythe compulsion is confined to the field of public law, in suchcases; and there are majorities in affairs which are to bereckoned, not by number, but by capacity.1441. Roman Law an Example. The law of Rome affords inthis respect an admirable example of the normal character of law.It was the fundamental thought of Roman law that it was thewill of the Roman people. The political liberty of the Romanconsisted in his membership of the state and his consequent participation, either direct or indirect, in the utterance of law. Asan individual he was subordinated to the will of the state; buthis own will as a free burgess was a part of the state's will thestate spoke his sovereignty. He was an integral part of theorganic community, his own power found its realization inthe absolute potestas et majestas populi. This giant will of thepeople, speaking through the organs of the state, constituted avery absolute power, by which the individual was completelydominated; but individual rights were recognized in the equality598 LAW ITS NATURE AND DEVELOPMENT.1.The anarchist.of the law, in its purpose to deal equally with high and low, withstrong and weak; and this was the Roman recognition of individual liberty. a focialistic tendewey .1442. The Power of Habit. Legislators, those who exercisethe sovereignty of a community, build upon the habit of their socalled ' subjects. ' If they be of the same race and sharers of thesame history as those whom they rule, their accommodation oftheir acts to the national habit will be in large part unconscious:for that habit runs in their own veins as well as in the veins of thepeople. If they be invaders or usurpers, they avoid crossing theprejudices or the long-abiding practices of the nation out ofcaution or prudence. In any case their activity skims but thesurface, avoids the sullen depths of the popular life. They workarbitrary decrees upon individuals, but they are balked of powerto turn about the life of the mass: that they can effect only byslow and insidious measures which almost insensibly deflect thehabits of the people into channels which lead away from old intonew and different methods and purposes. The habit of thenation is the material on which the legislator works; and itsqualities constitute the limitations of his power. It is stubbornmaterial, and dangerous. If he venture to despise it, it forceshim to regard and humor it; if he would put it to unaccustomeduses, it balks him; if he seek to force it, it will explode in hishands and destroy him. The sovereignty is not his, but only theleadership. is.1443. Law's Utterance of National Character. There is nouniversal law, but for each nation a law of its own, which bearsevident marks of having been developed along with the nationalcharacter, which mirrors the special life of the particular peoplewhose political and social judgments it embodies (sec. 1431).The despot may be grossly arbitrary; he may violate every principle of right in his application of the law to individuals; hemay even suspend all justice in individual cases; but the law,the principles which he violates or follows at pleasure, he takesfrom the people whom he governs, extracts from their habitand history. What he changes is the application merely, not theprinciples, of justice; and he changes that application only withreference to a comparatively small number of individuals whom3Pter the Great; Repoleon .Loves idea issimilar to Quizot's .LAW: ITS NATURE AND DEVELOPMENT. 599he specially picks out for his enmity or displeasure. He cannotviolently turn about the normal processes of the national law.1444. Germanic Law. We have in Germanic law an exampleof the influence of national character upon legal systems as conspicuous as that afforded by Roman law itself, and the exampleis all the more instructive when put alongside of the Romanbecause of the sharpness of the contrasts between Roman andGermanic legal conceptions. Although so like the Romans inpractical political sagacity and common-sense legal capacity, theGermans had very different conceptions as to the basis andnature of law. Their law spoke no such exaltation of the publicpower, and consequently no such intense realization of organicunity. The individual German was, so to say, given play outsidethe law; his rights were not relative, but absolute, self-centered.It was the object of the public polity rather to give effect toindividual worth and liberty than to build together a compact,dominant community. German law, therefore, took no thoughtfor systematic equality, but did take careful thought to leave.room for the fullest possible assertion of that individuality whichmust inevitably issue in inequality. It was a flexible frameworkfor the play of individual forces. It lacked the organic energy,the united, triumphant strength of the Roman system; but itcontained untold treasures of variety and of individual achievement. It, no less than Roman law, rested broadly upon nationalcharacter; and it was to supply in general European historywhat the Roman system could not contribute.1445. Sovereignty: who gives Law? If, then, law be aproduct of national character, if the power of the communitymust be behind it to give it efficacy, and the habit of the community in it to give it reality, where is the seat of sovereignty?Whereabouts and in whom does sovereignty reside, and whatis Sovereignty? These, manifestly, are questions of great scopeand complexity, and yet questions central to a right understanding of the nature and genesis of law. It will be best to approachour answers to them by way of illustrations.1446. In England, sovereignty is said to rest with the legislative power with Parliament acting with the approval of theCrown, or, not to discard an honored legal fiction, with the Crown600 LAW: ITS NATURE AND DEVELOPMENT.acting with the assent of Parliament. Whatever an Act of Parliament prescribes is law, even though it contravene every principle, constitutional or only of private right, recognized beforethe passage of the Act as inviolable. Such is the theory. Thewell-known fact is, that Parliament dare do nothing that willeven seem to contravene principles held to be sacred in thesphere either of constitutional privilege or private right. ShouldParliament violate such principles, their action would be repudiated by the nation, their will, failing to become indeed law,would pass immediately into the limbo of things repealed; Parliament itself would be purged of its offending members. Parliament is master, can utter valid commands, only so far as itinterprets, or at least does not cross, the wishes of the people.Whether or not it be possible to say with the approval of thosewho insist upon maintaining the rules of a strict abstract logicthat the sovereignty of Parliament is limited de jure, that is , inlaw, it is manifestly the main significant truth of the case thatparliamentary sovereignty is most imperatively limited de facto,in fact. Its actual power is not a whit broader for having a freefield in law, so long as the field in which it really moves is fencedhigh about by firm facts.1447. Again, it is said, apparently with a quite close regardfor the facts, that in Russia sovereignty is lodged with the Czar,the supreme master " of all the Russias. " That his will is lawSiberia attests and Nihilism recognizes. But is there no de factolimitation to his supremacy? How far could he go in the direction of institutional construction? How far could he succeed ingiving Russia at once and out of hand the institutions, and Russians the liberties, of the United States and its people? Howfar would such a gift be law? Only so far as life answered toits word of command. Only so far as Russian habit, schooled bycenturies of obedience to a bureaucracy, could and would respondto its invitation. Only so far, in a word, as the new institutionswere accepted. The measure of the Czar's sovereignty is thehabit of his people; and not their habit only, but their humoralso, and the humor of his officials. His concessions to the restless spirit of his army, to the prejudices of his court, and to thetemper of the mass of his subjects, his means of keeping this sideDan's or Inson attach too much foreckublic opinion?This historie theory is shown in thisdiscussion .LAW: ITS NATURE AND DEVELOPMENT. 601assassination or revolution, nicely mark the boundaries of hissovereignty.1448. Sovereignty, therefore, as ideally conceived in legaltheory, nowhere actually exists. The sovereignty which doesexist is something much more vital, though, like most livingthings, much less easily conceived. It is the will of an organizedindependent community, whether that will speak in acquiescencemerely, or in active creation of the forces and conditions of politics. The kings or parliaments who serve as its vehicles utterit, but they do not possess it. Sovereignty resides in the community; but its organs, whether those organs be supreme magistrates, busy legislatures, or subtile privileged classes, are asvarious as the conditions of historical growth .1449. Certain Legal Conceptions Universal. The correspondence of law with national character, its basis in national habit,does not deprive it of all universal characteristics. Many common features it does wear among all civilized peoples. As theRomans found it possible to put together, from the diversifiedsystems of law existing among the subject peoples of the Mediterranean basin, a certain number of general maxims of justice outof which to construct the foundations of their jus gentium, so mayjurists to-day discover in all systems of law alike certain commonmoral judgments, a certain evidence of unity of thought regardingthe greater principles of equity. There is a common legal conscience in mankind.1450. Thus, for example, the sacredness of human life; among allAryan nations at least, the sanctity of the nearer family relationships; inall systems at all developed , the plainer principles of mine ' and ' thine ';the obligation of promises; many obvious duties of man to man suggestedby the universal moral consciousness of the race, receive recognition underall systems alike. Sometimes resemblances between systems the mostwidely separated in time and space run even into ceremonial details, suchas the emblematic transfer of property, and into many items of personalright and obligation.1451. Law and Ethics. It by no means follows, however,that because law thus embodies the moral judgments of therace on many points of personal relation and individual conduct,it is to be considered a sort of positive, concrete Ethics, Ethics602 LAW ITS NATURE AND DEVELOPMENT.crystallized into definite commands towards which the branch ofculture which we call Ethics ' stands related as theory to practice . Ethics concerns the whole walk and conversation of theindividual; it touches the rectitude of each man's life, the truthof his dealings with his own conscience, the whole substance ofcharacter and conduct, righteousness both of act and of mentalhabit. Law, on the other hand, concerns only man's life insociety. It not only confines itself to controlling the outwardacts of men; it limits itself to those particular acts of man toman which can be regulated by the public authority, which it hasproved practicable to regulate in accordance with uniform rulesapplicable to all alike and in an equal degree. It does not essayto punish untruthfulness as such, it only annuls contracts obtained by fraudulent misrepresentation and makes good suchpecuniary damage as the deceit may have entailed. It does notcensure ingratitude or any of the subtler forms of faithlessness ,it only denounces its penalties against open and tangible acts ofdishonesty. It does not assume to be the guardian of men's characters, it only stands with a whip for those who give overt proofof bad character in their dealings with their fellow-men. Its limitations are thus limitations both of kind and of degree. It addresses itself to the regulation of outward conduct only: that isits limitation of kind; and it regulates outward conduct only sofar as workable and uniform rules can be found for its regulation:that is its limitation of degree.1452. Mala Prohibita. - Law thus plays the rôle neither ofconscience nor of Providence. More than this, it follows standards of policy only, not absolute standards of right and wrong.Many things that are wrong, even within the sphere of socialconduct, it does not prohibit; many things not wrong in themselves it does prohibit. It thus creates, as it were, a new classof wrongs, relative to itself alone: mala prohibita, things wrongbecause forbidden. In keeping the commands of the state regarding things fairly to be called morally indifferent in themselves men are guided by their legal conscience. Society restsupon obedience to the laws: laws determine the rules of socialconvenience as well as of social right and wrong; and it is asnecessary for the perfecting of social relationships that the rulesLAW ITS NATURE AND DEVELOPMENT. 603of convenience be obeyed as it is that obedience be rendered tothose which touch more vital matters of conduct.1453. Thus it cannot be said to be inherently wrong for a man to marryhis deceased wife's sister; but if the laws, seeking what may be esteemedto be a purer order of family relationships, forbid such a marriage, itbecomes malumprohibitum: it is wrong because illegal.1454. It would certainly not be wrong for a trustee to buy the trustestate under his control if he did so in good faith and on terms manifestlyadvantageous to the persons in whose interest he held it; but it is contrary to wise public policy that such purchases should be allowed, becausea trustee would have too many opportunities for unfair dealing in suchtransactions . The law will under no circ*mstances hold the sale of atrust estate to the trustee valid. Such purchases, however good the faithin which they are made, are mala prohibita.1455. Or take, as another example, police regulations whose onlyobject is to serve the convenience of society in crowded cities. A streetparade, with bands and banners and men in uniform is quite harmless andis immensely pleasing to those who love the glitter of epaulettes and brassbuttons and the blare of trumpets; but police regulations must see to itthat city streets are kept clear for the ordinary daily movements of thebusy city population, and to parade without license is malum prohibitum. Prohibiti1456. In all civilized states law has long since abandonedPattempts to regulate conscience or opinion; it would find it ,too, both fruitless and unwise to essay any regulation of conduct, however reprehensible in itself, which did not issue indefinite and tangible acts of injury to others. But it does seekto command the outward conduct of men in their palpable dealings with each other in society. Law is the mirror of active,organic political life. It may be and is instructed by the ethicaljudgments of the community, but its own province is not distinctively ethical; it may regard religious principle, but it is nota code of religion. Ethics has been called the science of thewell-being of man, law the science of his right civil conduct.Ethics concerns the development of character; religion, thedevelopment of man's relation with God; law, the developmentof men's relations to each other in society. Ethics, says Mr.Sidgwick, " is connected with politics so far as the well-beingof any individual man is bound up with the well-being of hissociety. "604 LAW ITS NATURE AND DEVELOPMENT.11457. International Law. The province of International Lawmay be described as a province half-way between the provinceof morals and the province of positive law. It is law withouta forceful sanction. There is no earthly power of which allnations are subjects; there is no power, therefore, to enforce obedience to rules of conduct as between nation and nation. International Law is, moreover, a law which rests upon those uncodified, unenacted principles of right action, of justice, and ofconsideration which have so universally obtained the assent ofmen's consciences, which have so universal an acceptance in themoral judgments of men everywhere, that they have been styledLaws of Nature (secs. 270-271), but whichhave a nearer kinship toethical maxims than to positive law. "The law of nations," saysBluntschli, "is that recognized universal Law of Nature whichbinds different states together in a humane jural society, andwhich also secures to the members of different states a common protection of law for their general human and internationalrights. " Its only formal and definite foundations, aside fromthe conclusions of those writers who, like Grotius and Vattel,have given to it distinct statements of what they conceived tobe the leading, the almost self-evident principles of the Law ofNature, are to be found in the treaties by which states, actingin pairs or in groups, have agreed to be bound in their relationswith each other, and in such principles of international action ashave found their way into the statutes or the established judicialprecedents of enlightened individual states. More and more, international conventions have come to recognize in their treatiescertain elements of right, of equity, and of comity as settled, asalways to be accepted in transactions between nations. The veryjealousies of European nations have contributed to swell the bodyof accepted treaty principles. As the practice of concerted actionby the states of the continent of Europe concerning all questionsof large interest, the practice of holding great Congresses likethose of Vienna in 1815, of Paris in 1856, and of Berlin in 1878,has grown into the features of a custom, so has the body of principles which are practically of universal recognition increased.International Law, says Dr. Bulmerincq, " is the totality of legal¹ Das Völkerrecht, sec. I.LAW: ITS NATURE AND DEVELOPMENT. 605rules and institutions which have developed themselves touchingthe relations of states to one another. " 11458. International Law is, therefore, not law at all in thestrictest sense of the term. It is not, as a whole, the will of anystate: there is no authority set above the nations whose command it is . In one aspect, the aspect of Bluntschli's definition,it is simply the body of rules, developed out of the common moraljudgments of the race, which ought to govern nations in theirdealings with each other. Looked at from another, from Dr.Bulmerincq's, point of view, it is nothing more than a generalized statement of the rules which nations have actually recognizedin their treaties with one another, made from time to time, andwhich by reason of such precedents are coming more and moreinto matter-of- course acceptance.1459. These rules concern the conduct of war, diplomatic intercourse,the rights of citizens of one country living under the dominion of another,jurisdiction at sea, etc. Extradition principles are settled almost alwaysby specific agreement between country and country, as are also commercial arrangements, fishing rights, and all similar matters not of universalbearing. But even in such matters example added to example is turningnations in the direction of uniform principles; such, for instance, asthat political offences shall not be included among extraditable crimes,unless they involve ordinary crimes of a very heinous nature , suchas murder.1460. Laws of Nature and Laws of the State. -The analogybetween political laws, the laws which speak the will of the state,and natural laws, the laws which express the orderly successionof events in nature, has often been dwelt upon, and is not withoutinstructive significance. In the one set of laws as in the other,there is, it would seem, a uniform prescription as to the operation of the forces that make for life . The analogy is most instructive, however, where it fails: it is more instructive, that is,to note the contrasts between the laws of nature and laws of thestate than to note such likeness as exists between them. Thecontrasts rather than the resemblances serve to make evident thereal nature of political regulation . "Whenever we have made.1 Das Völkerrecht (in Marquardsen's Handbuch, Vol. I. ) , sec. I. of themonograph.606 LAW ITS NATURE AND DEVELOPMENT.out by careful and repeated observation, " says Professor Huxley,"that something is always the cause of a certain effect, or thatcertain events always take place in the same order, we speak ofthe truth thus discovered as a law of nature. Thus it is a lawof nature that anything heavy falls to the ground if it is unsupported . . . . But the laws of nature are not the causes of theorder of nature, but only our way of stating as much as we havemade out of that order. Stones do not fall to the ground in consequence of the law just stated, as people sometimes carelesslysay; but the law is a way of asserting that which invariably happens when heavy bodies at the surface of the earth, stones amongthe rest, are free to move. " Whatever analogies may exist betweensuch generalized statements of physical fact and the rules in accordance with which men are constrained to act in organized civilsociety it may be profitable for the curious carefully to inquireinto. What it is most profitable for the student of politics toobserve is the wide difference between the two, which ProfessorHuxley very admirably states as follows: " Human law consistsof commands addressed to voluntary agents, which they may obeyor disobey; and the law is not rendered null and void by beingbroken. Natural laws, on the other hand, are not commands,but assertions respecting the invariable order of nature; and theyremain law only so long as they can be shown to express thatorder. To speak of the violation or suspension of alaw of natureis an absurdity. All that the phrase can really mean is that,under certain circ*mstances, the assertion contained in the law isnot true; and the just conclusion is, not that the order of natureis interrupted, but that we have made a mistake in stating thatorder. A true natural law is a universal rule, and, as such, admits of no exception . " In brief, human choice enters into thelaw of the state, whereas from natural law that choice is altogether excluded: it is dominated by fixed necessity. Humanchoice, indeed, enters every part of political law to modify it. Itis the element of change; and it has given to the growth of lawa variety, a variability, and an irregularity which no other powercould have imparted.1 These passages are taken from Professor Huxley's Science Primer,Introductory.LAW ITS NATURE AND DEVELOPMENT. 6071461. Limitations of Political Law. We have thus laid bareto our view some of the most instructive characteristics of political law. The laws of nature formulate effects invariably produced by forces of course adequate to produce them; but behindpolitical laws there is not always a force adequate to produce theeffects which they are designed to produce. The force, the sanction, as jurists say, which lies behind the laws of the state is theorganized armed power of the community: compulsion raises itsarm against the man who refuses to obey (secs. 1387, 1440) . Butthe public power may sleep, may be inattentive to breaches oflaw, may suffer itself to be bribed, may be outwitted or thwarted:laws are not always ' enforced. ' This element of weakness it iswhich opens up to us one aspect at least of the nature of Law.Law is no more efficient than the state whose will it utters. Thelaw of Turkey shares all the imperfections of the Turkish power;the laws of England bespeak in their enforcement the efficacy ofEnglish government. Good laws are of no avail under a bad government; a weak, decadent state may speak the highest purposesin its statutes and yet do the worst things in its actual administration. Commonly, however, law embodies the real purposesof the state, and its enforcement is a matter of administrativecapacity or of concerted power simply.1462. Public Law. The two great divisions under which lawmay best be studied are these: (1) Public Law, (2) Private Law.Public law is that which immediately concerns the existence,the structure, the functions, and the methods of the state. Takenin its full scope, it includes not only what we familiarly knowas constitutional law, but also what is known as administrativelaw, as well as all civil procedure in the courts and all criminallaw. In brief, it is that portion of law which determines astate's own character and its relations to its citizens .1463. Private Law. - Private law, on the other hand, is thatportion of positive law which secures to the citizen his rights asagainst the other citizens of the state. It seeks to effect justicebetween individual and individual; its sphere is the sphere ofindividual right and duty.1464. It is to the Romans that we are indebted for a first partial recognition of this important division in the province of Law, though later608 LAW ITS NATURE AND DEVELOPMENT.times have given a different basis to this distinction . I say indebted 'because the distinction between public and private law has the mostimmediate connections with individual liberty. Without it, we have thestate of affairs that existed in Greece, where there was no sphere whichwas not the state's ( secs. 1482-1484 ); and where the sphere of the state'srelations to the individual was as wide as the sphere of the law itself.Individual liberty can exist only where it is recognized that there arerights which the state does not create, but only secures.1465. Jurisprudence.-Jurisprudence is a term of much latitude, but when used strictly must be taken to mean the Scienceof Law. The science of law is complete only when it has laidbare both the nature and the genesis of law: the nature of lawmust be obscure until its genesis and the genesis of the conceptions upon which it is based have been explored; and thatgenesis is a matter, not of logical analysis, but of history . Manywriters upon jurisprudence, therefore, have insisted upon thehistorical method of study as the only proper method. Theyhave sought in the history of society and of institutions to discover the birth and trace the development of jural conceptions,the growths of practice which have expanded into the law ofproperty or of torts, the influences which have contributed to theorderly regulation of man's conduct in society.1466. In the hands of another school of writers, however, jurisprudence has been narrowed to the dimensions of a science of lawin its modern aspects only. They seek to discover, by an analysis of law in its present full development, the rights whichhabitually receive legal recognition and the methods by whichstates secure to their citizens their rights, and enforce upon themtheir duties, by positive rules backed by the abundant sanctionof the public power. In their view, not only is the history oflaw not jurisprudence, but, except to a very limited extent, it isnot even the material of jurisprudence. Its material is law as itat present exists. The history of that law is only a convenientlight in which the real content and purpose of existing law maybe made plainer to the analyst. The conclusions of these writersare subject to an evident limitation, therefore . Their analysis oflaw, being based upon existing legal systems alone and takingthe fully developed law for granted, can be applied to law in theLAW: ITS NATURE AND DEVELOPMENT. 609earlier stages of society only by careful modification, only by amore or less subtle and ingenious accommodation of the meaningof its terms.1467. Historical jurisprudence alone, a science of law, thatis, constructed by means of the historical analysis of law andalways squaring its conclusions with the history of society, canserve the objects of the student of politics . The processes ofanalytical jurisprudence, however, having been conducted byminds of the greatest subtlety and acuteness, serve a very usefulpurpose in supplying a logical structure of thought touching fullgrown systems of law.1468. The Analytical Account --- of Law. In the thought of theanalytical school every law is a command, " an order issued by asuperior to an inferior. " " Every positive law is ' set by a sovereign person, or sovereign body of persons, to a member or members of the independent political society wherein that person orbody of persons is sovereign or superior. " " In its terms, manifestly, such an analysis applies only to times when the will ofthe state is always spoken by a definite authority; not with thevoice of custom, which proceeds no one knows whence; not withthe voice of religion, which speaks to the conscience as well asto the outward life, and whose sanctions are derived from theunseen power of a supernatural being; nor yet with the voice ofscientific discussion, whose authors have no authority except thatof clear reason; but with the distinct accents of command, withthe voice of the judge and the legislator.1469. The Analytical Account of Sovereignty. The analyticalaccount of sovereignty is equally clear- cut and positive . Laws, " beingcommands, emanate from a determinate source, " from a sovereign authority; and analytical jurisprudence is very strict and formal in its definition of sovereignty. A sovereign " is a determinate person , or body ofpersons, to whom the bulk of the members of an organized communityare in the habit of rendering obedience and who are themselves not in thehabit of rendering obedience to any human superior. " It follows, ofcourse , that no organic community which is not independent can have alaw of its own. The law of the more fully developed English colonies , forexample, though it is made by the enactment of their own parliaments, isnot law by virtue of such enactment, because those parliaments are in thehabit of being obedient to the authorities in London and are not them-610 LAW: ITS NATURE AND DEVELOPMENT.selves sovereign . The sovereignty which lies back of all law in the colonies is said to be the sovereignty of the parliament of England.1470. It would seem to follow that our own federal authorities aresovereign. They are a determinate body of persons to whom the bulk ofthe nation is habitually obedient and who are themselves obedient to nohuman superior. But then what of the authority of the states in thatgreat sphere of action which is altogether and beyond dispute their own(sec. 1091 ) , which the federal authorities do not and cannot enter, withinwhich their own people are habitually obedient to them, and in whichthey are not subject to any earthly superior? It has been the habit of allour greater writers and statesmen to say that with us sovereignty isdivided. But the abstract sovereignty of which the legal analyst speaksis held to be indivisible: it must be whole. Analysis , therefore, is drivento say that with us sovereignty rests in its entirety with that not verydeterminate body of persons, the people of the United States, the powersof sovereignty resting with the state and federal authorities by delegationfrom the people.1471. The difficulty of applying the analytical account of sovereigntyto our own law is in part avoided if law be defined as "the command ofan authorized public organ, acting within the sphere of its competence.What organs are authorized , and what is the sphere of their competence,is of course determined by the organic law of the state; and this law isthe direct command of the sovereign. " The only difficulty left by thissolution is that of making room in our system for both a sovereign peopleof the single state and a sovereign people of the Union.1472. Summary. -Spoken first in the slow and general voiceof custom, Law speaks at last in the clear, the multifarious, theactive tongues of legislation. It grows with the growthof thecommunity. It cannot outrun the conscience of the communityand be real, it cannot outlast its judgments and retain its force.It mirrors social advance. If it anticipate the development ofthe public thought, it must wait until the common judgment andconscience grow up to its standards before it can have life; if itlag behind the common judgment and conscience, it must becomeobsolete, and will come to be more honored in the breach than inthe observance.1 This definition I have taken the liberty of extracting from some veryvaluable notes on this chapter kindly furnished me by Professor MonroeSmith, who upon this subject speaks authoritatively .LAW ITS NATURE AND DEVELOPMENT. 611SEVERAL REPRESENTATIVE AUTHORITIES.Austin, John, " Lectures on Jurisprudence, the Philosophy of PositiveLaw," 2 vols .Bluntschli, J. C. , " Allgemeines Staatsrecht." 6th ed. Stuttgart, 1885.Heron, D. C., " Introduction to the History of Jurisprudence," London,1880.Holland, T. E., “ Elements of Jurisprudence. " 4th ed. Oxford, 1888.Holtzendorff, F. v. , " Encyklopädie der Rechtswissenschaft," Leipzig,1882.Thering, v., "Geist des Römischen Rechts. " 3 vols . , Leipzig.Jellinek, Georg, " Gesetz und Verordnung, " Freiburg in B., 1887.Maine, Sir H. S., " Ancient Law," and " Early History of Institutions,"Lectures XII. , XIII.Markby, Sir Wm. , " Elements of Law, " Oxford ( Clarendon Press) , 1889.Pollock, Sir Frederick, " A First Book of Jurisprudence, " London andN.Y., 1896.Robertson, E., Article ' Law,' Encyclopædia Britannica. 9th ed.Savigny, "Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft. "Reprint, Freiburg in B., 1892.Thibaut, Anton F. J., " Ueber die Nothwendigkeit eines allgemeinenbürgerlichen Rechts für Deutschland. " New ed. Heidelberg, 1840.XV.THE FUNCTIONS OF GOVERNMENT.1473. What are the Functions of Government? -The questionhas its own difficulties and complexities: it cannot be answeredout of hand and by the list, as the physiologist might answer thequestion, What are the functions of the heart? In its naturegovernment is one, but in its life it is many: there are governments and governments. When asked, therefore, What are thefunctions of government? we must ask in return, Of what government? Different states have different conceptions of theirduty, and so undertake different things. They have had theirown peculiar origins, their own characteristic histories; circ*mstance has moulded them; necessity, interest, or caprice hasvariously guided them. Some have lingered near those primitiveinstitutions which all once knew and upheld together; othershave quite forgotten that man ever had a political childhood andare now old in complex practices of national self-government.1474. The Nature of the Question . It is important to noticeat the outset that this is in one aspect obviously a simple questionoffact; and yet there is another phase of it, in which it becomesas evidently a question of opinion. The distinction is importantbecause over and over again the question of fact has been confounded with that very widely different question, What ought thefunctions ofgovernment to be? The two questions should be keptentirely separate in treatment. Under no circ*mstances may weinstructively or safely begin with the question of opinion: theanswer to the question of fact is the indispensable foundation ofall sound reasoning concerning government, which is at all pointsbased upon experience rather than upon theory. The facts ofgovernment mirror the principles of government in operation.612THE FUNCTIONS OF GOVERNMENT. 613What government does must arise from what government is: andwhat government is must determine what government ought to do.1475. Classification . It will contribute to clearness of thoughtto observe the functions of government in two groups, I. TheConstituent Functions, II. The Ministrant. Under the Constituent I would place that usual category of governmental function,the protection of life, liberty, and property, together with allother functions that are necessary to the civic organization ofsociety, functions which are not optional with governments,even in the eyes of strictest laissez faire, — which are indeed thevery bonds of society. Under the Ministrant I would rangethose other functions (such as education, posts and telegraphs,and the care, say, of forests ) which are undertaken, not by wayof governing, but by way of advancing the general interests ofsociety, functions which are optional, being necessary onlyaccording to standards of convenience or expediency, and notaccording to standards of existence; functions which assist without constituting social organization.-1476. Of course this classification is based primarily upon objectiveand practical distinctions and cannot claim philosophic completeness.There may be room for question, too, as to whether some of the functionswhich I class as Ministrant might not quite as properly have been considered Constituent; but I must here simply act upon my own conclusionswithout rearguing them, acknowledging by the way that the line ofdemarcation is not always perfectly clear.""1477. "The admitted functions of government, " said Mr. Mill , embrace a much wider field than can easily be included within the ring- fenceof any restrictive definition , and it is hardly possible to find any groundof justification common to them all , except the comprehensive one ofgeneral expediency . "1478. I. The Constituent Functions:(1) The keeping of order and providing for the protection ofpersons and property from violence and robbery.(2) The fixing of the legal relations between man and wife andbetween parents and children.(3) The regulation of the holding, transmission, and interchangeof property, and the determination of its liabilities fordebt or for crime.614 THE FUNCTIONS OF GOVERNMENT.(4) The determination of contract rights between individuals.(5) The definition and punishment of crime.(6) The administration of justice in civil causes.(7) The determination of the political duties, privileges, andrelations of citizens.(8) Dealings of the state with foreign powers: the preservationof the state from external danger or encroachment andthe advancement of its international interests.These will all be recognized as functions which are obnoxiousnot even to the principles of Mr. Spencer, ' and which persistunder every form of government.-1479. II. The Ministrant Functions. It is hardly possible togive a complete list of those functions which I have called Ministrant, so various are they under different systems of government.The following partial list will suffice, however, for the purposesof the present discussion:(1) The regulation of trade and industry. Under this head Iwould include the coinage of money and the establishment of standard weights and measures, laws againstforestalling and engrossing, the licensing of trades, etc.,as well as the great matters of tariffs, navigation laws,and the like.(2) The regulation of labor.(3) The maintenance of thoroughfares,-including state management of railways and that great group of undertakings which we embrace within the comprehensive term.Internal Improvements.'(4) The maintenance of postal and telegraph systems, which isvery similar in principle to (3) .(5) The manufacture and distribution of gas, the maintenanceof water-works, etc.(6) Sanitation, including the regulation of trades for sanitarypurposes.(7) Education.(8) Care of the poor and incapable.1 As set forth in his pamphlet, Man versus the State.THE FUNCTIONS OF GOVERNMENT. 615(9) Care and cultivation of forests and like matters, such as thestocking of rivers with fish.(10) Sumptuary laws, such as ' prohibition ' laws, for example.1480. These are all functions which, in one shape or another,all governments alike have undertaken. Changed conceptions ofthe nature and duty of the state have arisen, issuing from changedhistorical conditions, deeply altered historical circ*mstances; andpart of the change which has thus affected the idea of the statehas been a change in the method and extent of the exercise ofgovernmental functions; but changed conceptions have left thefunctions of government in kind the same. Diversities of conception are very much more marked than diversities of practice.1481. The following may be mentioned among ministrant functionsnot included under any of the foregoing heads, and yet undertaken bymore than one modern government: the maintenance of savings-banks,especially for small sums ( e.g. , the English postal savings-bank) , theissuance of loans to farmers , and the maintenance of agricultural institutes(as in France) , and the establishment of insurance for workingmen ( as inGermany) .-1482. History of Governmental Function: Province of the Ancient State. Notable contrasts both of theory and of practice separate governments of the ancient omnipotent type from governmentsof the modern constitutional type. The ancient State, standingvery near, as it did, in its thought, to that time, still more remote,when the State was the Kin, knew nothing of individual rights ascontrasted with the rights of the state. "The nations of Italy,"says Mommsen, " did not merge into that of Rome more completelythan the single Roman burgess merged in the Roman community. "And Greece was not a whit behind Rome in the absoluteness withwhich she held the subordination of the individual to the state.1483. This thought is strikingly visible in the writings of Plato andAristotle, not only in what they say, but also , and even more, in whatthey do not say. The ideal Republic of which Plato dreams is to prescribe the whole life of its citizens; but there is no suggestion that itis to be set up under cover of any new conception as to what the statemay legitimately do, - it is only to make novel experiments in legislationunder the old conception. And Aristotle's objection to the utopianprojects of his master is not that they would be socialistic ( as we shouldsay) , but merely that they would be unwise. He does not fear that in616 THE FUNCTIONS OF GOVERNMENT.1such a republic the public power would prove to have been exalted toohigh; but, speaking to the policy of the thing, he foresees that thecitizens would be poor and unhappy. The state may do what it will,but let it be wise in what it does. There is no one among the Greeksto deny that it is the duty of the state to make its citizens happy and prosperous; nay, to legislate them happy, if legislation may create fairskies and a kind fortune; the only serious quarrel concerns the question,What laws are to be tried to this end?-1484. Roman Conception of Private Rights. Roman principles,though equally extreme, were in some respects differently cast.That superior capacity for the development of law, which madethe Romans singular among the nations of antiquity, showeditself in respect of the functions of government in a more distinctdivision between public and private rights than obtained in thepolity of the Greek cities . An examination of the conception ofthe state held in Rome reveals the singular framework of hersociety. The Roman family did not suffer that complete absorption into the City which so early overtook the Greek family.Private rights were not individual rights, but family rights: andfamily rights did not so much curtail as supplement the powersof the community. The family was an indestructible organ ofthe state. The father of a family, or the head of a gens, was in asense a member of the official hierarchy of the City, as the king,or his counterpart the consul, was a greater father. There was nodistinction of principle between the power of king or consul andthe power of a father; it was a mere difference of sphere, a division of functions.1485. A son was, for instance, in some things exempt from the authority of the City only because he was in those things still subject, becausehis father still lived, to the dominion of that original state, the family.There was not in Rome that separation of the son from the family atmajority which characterizes the Greek polity, as it now characterizesour own. The father continued to be a ruler, an hereditary state officer,within the original sphere of the family life , the large sphere of individualprivilege and property.1486. This essential unity of state and family furnishes uswith the theoretic measure of state functions in Rome. TheRoman burgess was subordinated, not to the public authorityexactly, but rather to the public order, to the conservative in-THE FUNCTIONS OF GOVERNMENT. 617tegrity of the community. He was subject to a law whichembodied the steady, unbroken habit of the State-family. Hewas not dominated, but merged.1487. Powers of the Roman Senate. The range of state powerin ancient times, as a range broken only by limits of habit and convenience, is well illustrated in the elastic functions of the Roman Senateduring the period of the Republic. With an unbroken life which keptit conscious of every tradition and familiar with every precedent; withestablished standards of tested experience and cautious expediency , it wasable to direct the movements of the compact society at whose summit itsat, as the brain and consciousness direct the movements of the humanbody; and it is evident from the freedom of its discussions and thefrequency of its action upon interests of every kind, whether of publicor of private import, that the Roman state, as typified in its Senate, wasin its several branches of family, tribe, and City, a single undividedwhole, and that its prerogatives were limited by nothing save religiousobservance and fixed habit. Of that individual liberty which we cherish*t knew nothing. (Compare secs . 173, 174.)1488. Government the Embodiment of Society. As little wasthere in Greek politics any seed of the thought which wouldlimit the sphere of governmental action by principles of inalienable individual rights. Both in Greek and in Roman conceptiongovernment was as old as society, - was indeed nothing lessthan the express image and embodiment of society. In government society lived and moved and had its being. Society andgovernment were one, in some such sense as the spirit andbody of man are one: it was through government, as throughmouth and eyes and limbs, that society realized and gave effectto its life. Society's prejudices, habits, superstitions, didindeed command the actions of government; but only becausesociety and government were one and the same, not because theywere distinct and the one subordinate to the other. In plainterms, the functions of government had no limits of principle,but only certain limits of wont and convenience, and the objectof administration was nothing less than to help society on to allits ends to speed and facilitate all social undertakings. So far asfull citizens of the state were concerned, Greek and Roman alikewas what we should call a socialist; though he was too much intheworld of affairs and had too keen an appreciation of experience,618 THE FUNCTIONS OF GOVERNMENT.too keen a sense of the sane and possible, to attempt the Utopiasof which the modern socialist dreams, and with which the ancientcitizen's own writers sometimes amused him. He bounded hispolitics by common sense, and so dispensed with the rights ofman.'1489. Feudalism: Functions of Government Functions of Proprietorship. Individual rights, after having been first heraldedin the religious world by the great voice of Christianity, brokeinto the ancient political world in the person of the Teuton. Butthe new politics which the invader brought with him was notdestined to establish at once democratic equality that was awork reserved for the transformations of the modern world.During the Middle Ages, government, as we conceive it, maybe said to have suffered eclipse. In the Feudal System theconstituent elements of government fell away from each other.Society was drawn back to something like its original family.groups. Conceptions of government narrowed themselves tosmall territorial connections. Men became sovereigns in theirown right by virtue of owning land in their own right. Therewas no longer any conception of nations or societies as wholes.Union there was none, but only interdependence. Allegiancebowed, not to law or to fatherhood, but to ownership. Thefunctions of government under such a system were simply thefunctions of proprietorship, of command and obedience: " I sayunto one, Go, and he goeth; and to another, Come, and hecometh; and to my servant, Do this, and he doeth it. " Thepublic function of the baron was to keep peace among his liegemen, to see that their properties were enjoyed according to thecustom of the manor (if the manor had been suffered to acquirecustom on any point) , and to exact fines of them for all privileges, whether of marrying, of coming of age, or of making awill. The baronial conscience, bred in cruel, hardening times,was the only standard of justice; the baronial power the only conclusive test of prerogative.1490. This was between baron and vassal. Between baronand baron the only bond was a nominal common allegiance to adistant king, who was himself only a greater baron. For therest there was no government, but only diplomacy and warfare,THE FUNCTIONS OF GOVERNMENT. 619Government lived where it could and as it could, and was forthe most part divided out piecemeal to a thousand petty holders.Armed feuds were the usual processes of justice.- 1491. The Feudal Monarchy. The monarchy which grewout of the ruins of this disintegrate system concentrated authority without much changing its character. The old idea,born of family origins, that government was but the active authority of society, the magistrate but society's organ, bound bysociety's immemorial laws, had passed utterly away, and government had become the personal possession of one man. Theruler did not any longer belong to the state; the state belongedto him he was himself the state, as the rich man may be said tobe his possessions. The Greek or Roman official was wielded bythe community. Not so the king who had swept together intohis own lap the powers once broadcast in the feudal system: hewielded the community. Government breathed with his breath,and it was its function to serve him. The state had become, bythe processes of the feudal development, his private estate.1492. Modern De-socialization of the State. The reaction fromsuch conceptions, slow and for the most part orderly in England,sudden and violent, because long forcibly delayed, on the Continent, was natural, and indeed inevitable. When it came it wasradical; but it did not swing the political world back to its oldtime ideas; it turned it aside rather to new. The ancient manhad had no thought but to live loyally the life of society; but itbecame the object of the revolutionist and the democrat of thenew order of things to live his own life. The antique citizen'svirtues were not individual in their point of view, but social;whereas our virtues are almost entirely individual in their motive,social only in some of their results.1493. In brief, the modern State has been largely de- socialized.The modern idea is this: the state no longer absorbs the individual; it only serves him. The state, as it appears in its organ,the government, is the representative of the individual, and nothis representative even except within the definite commission ofconstitutions; while for the rest each man makes his own socialrelations. The individual for the State ' has been reversed andmade to read, "The State for the individual. '620 THE FUNCTIONS OF GOVERNMENT.1494. More Changes of Conception than of Practice.Such arethe divergencies of conception separating modern from ancient politics, divergencies at once deep and far-reaching. How far havesuch changes of thought been accompanied by changes of function? By no means so far as might be expected. Apparently thenew ideas which have been given prevalence in politics from timeto time have not been able to translate themselves into alteredfunctions, but only into somewhat curtailed functions, breedingrather a difference of degree than a difference of kind. Evenunder the most liberal of our modern constitutions we still meetgovernment in almost every field of social endeavor. Our modernlife is so infinitely wide and complex, it is true, that we may gogreat distances in any field of enterprise without receiving eitherdirect aid or direct check from government; but that is only because every field of enterprise is vastly big nowadays, not becausegovernment is not somewhere in it: and we know that the tendency is for governments to make themselves everywhere more andmore conspicuously present. We are conscious that we are byno means in the same case with the Greek or Roman: the state isours, not we the state's. But we know at the same time that thetasks of the state have not been much diminished. Perhaps wemay say that the matter stands thus: what is changed is not theactivities of government but only the morals, the conscience ofgovernment. Government may still be doing substantially thesame things as of old; but an altered conception of its responsibility deeply modifies the way in which it does them . Social convenience and advancement are still its ultimate standard of conduct,just as if it were still itself the omnipotent impersonation ofsociety, the master of the individual; but it has adopted newideas as to what constitutes social convenience and advancement.Its aim is to aid the individual to the fullest and best possiblerealization of his individuality, instead of merely to the fullrealization of his sociality. Its plan is to create the best and fairestopportunities for the individual; and it has discovered that the wayto do this is by no means itself to undertake the administrationof the individual by old-time futile methods of guardianship.1495. Functions of Government much the Same now as always.- This is indeed a great and profound change; but it is none thewhasbecome moreང ནངནཏིསསག ན ང ༥Ch jointsläckpadikansk used by its mbert;il mood to be cocoons qTHE FUNCTIONS OF GOVERNMENT. 621less important to emphasize the fact that the functions of government are still, when catalogued, found to be much the same bothin number and magnitude that they always were. Governmentdoes not stop with the protection of life, liberty, and property, assome have supposed; it goes on to serve every convenience ofsociety. Its sphere is limited only by its own wisdom, alike whererepublican and where absolutist principles prevail.1496. The State's Relation to Property. A very brief examination of the facts suffices to confirm this view. Take, for example,the state's relation to property, its performance of one of thechief of those functions which I have called Constituent. It isin connection with this function that one of the most decided contrasts exists between ancient and modern political practice; andyet we shall not find ourselves embarrassed to recognize as naturalthe practice of ancient states touching the right of private property. Their theory was extreme, but, outside of Sparta, theirpractice was moderate.-1497. In Sparta. Consistent, logical Sparta may serve as thepoint of departure for our observation. She is the standing classical type of exaggerated state functions and furnishes the mostextreme example of the antique conception of the relations of thestate to property. In the early periods of her history at least,besides being censor, pedagogue, drill sergeant, and housekeeper toher citizens, she was also universal landlord. There was a distinctreminiscence in her practice of the time when the state was thefamily, and as such the sole owner of property. She was regardedas the original proprietor of all the land in Laconia, and individual tenure was looked upon as rather of the nature of a usufructheld of the state and at the state's pleasure than as resting uponany complete or indefeasible private title. (Compare sec. 105. )- 1498. Peculiar Situation of the Spartans. There were in Spartaspecial reasons for the persistence of such a system. The Spartans had come into Laconia as conquerors, and the land had first of all been tribalbooty. It had been booty of which the Spartan host as a whole, as astate, had had the dividing, and it had been the purpose of the earlyarrangement to make the division of the land among the Spartan familiesas equal as possible. Nor did the state resign the right of disposition inmaking this first distribution. It remained its primary care to keep itscitizens, the favored Spartiatæ, upon an equal footing of fortune, to the622 THE FUNCTIONS OF GOVERNMENT.end that they might remain rich in leisure, and so be the better able tolive entirely for the service of the state, which was honorable, to theavoidance of that pursuit of wealth which was dishonorable. The state,accordingly, undertook to administer the wealth of the country for thebenefit of its citizens . When grave inequalities manifested themselves inthe distribution of estates it did not hesitate to resume its proprietaryrights and effect a reapportionment; no one dreaming, the while, of calling its action confiscation. It took various means for accomplishing itsends. It compelled rich heiresses to marry men without patrimony; andit grafted the poor citizen upon a good estate by means of prescribedadoption. No landed estate could be alienated either by sale or testamentfrom the family to which the state had assigned it unless express legislativeleave were given. In brief, in respect of his property the citizen was bothward and tenant of the state.1499. Decay of the System. As the Spartan state decayed thiswhole system was sapped. Estates became grossly unequal, asdid also political privileges even among the favored Spartiate.But these changes were due to the decadence of Spartan powerand to the degeneration of her political fibre in days of waningfortune, not to any conscious or deliberate surrender by the stateof its prerogatives as owner, guardian, and trustee. She hadgrown old and lax simply; she had not changed her mind.1500. In Athens. - When we turn to Athens we experience amarked change in the political atmosphere, though the Athenianshold much the same abstract conception of the state. Here menbreathe more freely and enjoy the fruits of their labor, wherelabor is without reproach, with less restraint. Even in Athensthere remain distinct traces, nevertheless, of the family duties ofthe state. She too, like Sparta, felt bound to dispose properly ofeligible heiresses. She did not hesitate to punish with heavy forfeiture of right (atimia) those who squandered their property indissolute living. There was as little limit in Athens as inSparta to the theoretical prerogatives of the public authority.The freedom of the citizen was a freedom of indulgence ratherthan of right: he was free because the state refrained, as aprivileged child, not as a sovereign under Rousseau's Law ofNature.1501. In Rome. —— When we shift our view to republican Romewe do not find a simple city omnipotence like that of Greece, inTHE FUNCTIONS OF GOVERNMENT. 623which all private rights are sunk. The primal constituents ofthe city yet abide in shapes something like their original. Romansociety consists of a series of interdependent links: the family,the gens, the city. The aggregate, not the fusion, of these makesup what we should call the state. But the state, so made up, wasomnipotent, through one or other of its organs, over the individual. Property was not private in the sense of being individual; it vested in the family, which was, in this as in otherrespects, an organ of the state. Property was not conceived of asstate property, because it had remained the undivided property ofthe family. The father, as a ruler in the immemorial hierarchyof the government, was all- powerful trustee of the family estates;individual ownership there was none.1502. Under Modern Governments. We with some justicefelicitate ourselves that to this omnipotence of the ancient statein its relations to property the practice of our own governmentsoffers the most pronounced contrasts. But the point of greatestinterest for us in the present connection is this, that these contrasts are contrasts of policy, not of power. To what lengths itwill go in regulating property rights is for each government aquestion of principle, which it must put to its own conscience,and which, if it be wise, it will debate in the light of politicalhistory but every government must regulate property in one.way or another and may regulate it as much as it pleases. If theancient state was regarded as the ultimate owner, the modernstate is regarded as the ultimate heir of all estates. Failingother claimants, property escheats to the state. If the modernstate does not assume, like the ancient, to administer their property upon occasion for competent adults, it does administer theirproperty upon occasion for lunatics and minors. The ancientstate controlled slaves and slavery. The modern state has beenquite as absolute: it has abolished slaves and slavery. Themodern state, no less than the ancient, sets rules and limitationsto inheritance and bequest. Most of the more extreme and hurtful interferences with rights of private ownership government hasabandoned, one may suspect, rather because of difficulties of administration than because of difficulties of conscience . It is of thenature of the state to regulate property rights; it is of the policy624 THE FUNCTIONS OF GOVERNMENT.duinof the state to regulate them more or less. Administrators mustregard this as one of the Constituent functions of political society.-1503. The State and Political Rights. - Similar conclusionsmay be drawn from a consideration of the contrasts which existin the field of that other Constituent function which concerns thedetermination of political rights, the contrasts between thestatus of the citizen in the ancient state and the status of the citizen in the modern state. Here also the contrast, as between stateand state, is not one of power, but one of principle and habitrather. Modern states have often limited as narrowly as did theancient the enjoyment of those political privileges which wegroup under the word Franchise. They, too, as well as theancient states, have admitted slavery into their systems; theytoo have commanded their subjects without moderation andfleeced them without compunction. But for all they have beenso omnipotent, and when they chose so tyrannical, they haveseldom insisted upon so complete and unreserved a service of thestate by the citizen as was habitual to the political practice ofboth the Greek and the Roman worlds. The Greek and theRoman belonged each to his state in a quite absolute sense. Hewas his own in nothing as against the claims of his city upon.him he freely acknowledged all his privileges to be but concessions from his mother, the commonwealth. Those privilegesaccrued to him through law, as do ours; but law was to himsimply the will of the organic community; never, as we knowit in our constitutions, a restraint upon the will of the organiccommunity. He knew no principles of liberty save only thosewhich custom had built up: which inhered, not in the nature ofthings, not in abstract individuality, but in the history of affairs,in concrete practice. His principles were all precedents. Nevertheless, however radically different its doctrines, the ancient statewas not a whit more completely master touching laws of citizenship than the state of to-day is.1504. As Regards the State's Ministrant Functions. Of theMinistrant, no less than of the Constituent functions, the samestatement may be made, that practically the state has beenrelieved of very little duty by alterations of political theory. Itis natural enough that in the field of the Constituent functionswith individe гадаю Societyback to idi.Aالداء "700THE FUNCTIONS OF GOVERNMENT. 625the state should serve society now as always; in this field of theMinistrant functions one would expect the state to be less activenow than formerly. But there is in fact no such difference: government does now whatever experience permits or the times demand;and though it does not do exactly the same things it still doessubstantially the same kind of things that the ancient state did.It will conduce to clearness if I set forth my illustrations of thisin the order of the list of Ministrant functions which I have given(sec. 1479).All nations haveIn the most remote1505. (1 ) The State in Relation to Trade.habitually regulated trade and commerce.periods of which history has retained any recollection the regulation of trade and commerce was necessary to the existence ofgovernment. The only way in which communities which werethen seeking to build up a dominant power could preserve anindependent existence and work out an individual developmentwas to draw apart to an absolutely separate life . Commercemeant contact; contact meant contamination: the only way inwhich to develop character and achieve cohesion was to avoidintercourse. In the classical states this stage is passed andtrade and commerce are regulated for much the same reasonsthat induce modern states to regulate them, in order, that is, tosecure commercial advantage as against competitors or in orderto serve the fiscal needs of the state. Athens and Sparta andRome, too, regulated the corn trade for the purpose of securingfor their citizens full store of food. In the Middle Ages thefeuds and highway brigandage of petty lords loaded commercewith fetters of the most harassing sort, except where the freecities could by militant combination keep open to it an unhindered passage to and fro between the great marts of North andSouth . As the medieval states emerge into modern times wefind trade and commerce handled by statesmen as freely as ever,but according to the reasoned policy of the mercantilist thinkers;and in our own days according to still other conceptions ofnational advantage.1506. (2) The State in Relation to Labor. - Labor, too, hasalways been regulated by the state. By Greek and Roman thelabor of the handicrafts and of agriculture, all manual toil626 THE FUNCTIONS OF GOVERNMENT.indeed, was for the most part given to slaves to do; and of courselaw regulated the slave. In the Middle Ages the labor whichwas not agricultural and held in bondage to feudal masters wasin the cities, where it was rigidly ordered by the complex rulesof the guild system, as were trade also and almost all other likeforms of making a livelihood. Where, as in England, labor in partescaped fromthe hard service of the feudal tenure the state steppedin with its persistent " statutes of laborers " and sought to tiethe workman to one habitation and to one rate of wages. ' Therustic must stay where he is and must receive only so much pay,'was its command. Apparently, however, all past regulation oflabor was but timid and elementary as compared with the laborlegislation about to be tried by the governments of our own day.The birth and development of the modern industrial system haschanged every aspect of the matter; and this fact reveals thetrue character of the part which the state plays in the case. Therule would seem to be that in proportion as the world's industriesgrow must the state advance in its efforts to assist the industriousto advantageous relations with each other. The tendency toregulate labor rigorously and minutely is as strong in England,where the state is considered the agent of the citizen, as it wasin Athens, where the citizen was deemed the child and tool of thestate, and where the workman was a slave.1507. ( 3 ) Regulation of Corporations. The regulation ofcorporations is but one side of the modern regulation of the industrial system, and is a function added to the antique list ofgovernmental tasks.1508. (4) The State and Public Works. The maintenance ofthoroughfares may be said to have begun with permanent empire,that is to say, for Europe, with the Romans. For the Romans,indeed, it was first a matter of moving armies, only secondarily ameans of serving commerce; whereas with us the highway isabove all things else an artery of trade, and armies use it onlywhen commerce stands still at the sound of drum and trumpet.The building of roads may therefore be said to have begun bybeing a Constituent function and to have ended by becoming aMinistrant function of government. But the same is not true ofother public works, of the Roman aqueducts and theatres andTHE FUNCTIONS OF GOVERNMENT. 627baths, and of modern internal improvements. They, as much asthe Roman tax on old bachelors, are parts, not of a scheme ofgoverning, but of plans for the advancement of other social aims,-- for the administration of society. Because in her conceptionthe community as a whole was the only individual, Rome thrustout as of course her magnificent roads to every quarter of hervast territory, considered no distances too great to be traversedby her towering aqueducts, deemed it her duty to clear rivercourses and facilitate by every means both her commerce and herarms. And the modern state, though holding a deeply modifiedconception of the relations of government to society, still followsa like practice. If in most instances our great iron highways areleft to private management, it is oftener for reasons of convenience than for reasons of conscience.1509. (5) Administration of the Conveniences of Society. -Similar considerations apply in the case of that modern instrumentality, the public letter-post, in the case of the still moremodern manufacture of gas, and in the case of the most moderntelegraph. The modern no less than the ancient governmentunhesitatingly takes a hand in administering the conveniencesof society.1510. (6) Sanitation. Modern governments, like the government of Rome, maintain sanitation by means of police inspectionof baths, taverns, and houses of ill fame, as well as by drainage;and to these they add hospital relief, water supply, quarantine,and a score of other means.-1511. (7) Public Education. Our modern systems of publiceducation are more thorough than the ancient, notwithstandingthe fact that we regard the individual as something other than amere servant of the state, and educate him first of all for himself.1512. (8) Sumptuary Laws. In sumptuary laws ancient statesof course far outran modern practice. Modern states have foregone most attempts to make citizens virtuous or frugal by law.But even we have our prohibition enactments; and we have hadour fines for swearing.1513. Summary. Apparently it is safe to say with regard tothe functions of government taken as a whole that, even as between ancient and modern states, uniformities of practice far out-

на628 THE FUNCTIONS OF GOVERNMENT.number diversities of practice. One may justly conclude, not indeed that the restraints which modern states put upon themselvesare of little consequence, or that altered political conceptions arenot of the greatest moment in determining important questionsof government and even the whole advance of the race; butthat it is rather by gaining practical wisdom, rather by longprocesses of historical experience, that states modify their practices. New theories are subsequent to new experiences.XVI.THE OBJECTS OF GOVERNMENT.1514. Character of the Subject. -- Political interest and controversy centre nowhere more acutely than in the question, Whatare the proper objects of government? This is one of those difficult questions upon which it is possible for many sharplyopposed views to be held apparently with almost equal weightof reason. Its central difficulty is this, that it is a questionwhich can be answered, if answered at all, only by the aid of abroad and careful wisdom whose conclusions are based upon thewidest possible inductions from the facts of political experiencein all its phases. Such wisdom is quite beyond the capacity ofmost thinkers and actors in the field of politics; and the consequence has been that this question, perhaps more than any otherin the whole scope of political science, has provoked great warsof doctrine.-1515. The Extreme Views held. What part shall government play in the affairs of society? that is the question whichhas been the gauge of controversial battle. What ought the functions ofgovernment to be? On the one hand there are extremistswho cry constantly to government, Hands off,' laissez faire,''laissez passer,' who look upon every act of government whichis not merely an act of police with jealousy; who regard government as necessary, but as a necessary evil; and who would havegovernment hold back from everything which could by any possibility be accomplished by individual initiative and endeavor. Onthe other hand, there are those who, with equal extremeness ofview in the opposite direction, would have society lean fondlyupon government for guidance and assistance in every affair oflife; who, captivated by some glimpse of public power and benefithecontrol inconditions,629هدینunderІ должнининойcasperating system .поли4212630 . THE OBJECTS OF GOVERNMENT.cence caught in the pages of ancient or mediæval historian, or bysome dream of coöperative endeavor cunningly imagined by thegreat fathers of Socialism, believe that the state can be made awise foster mother to every member of the family politic. Between these two extremes, again, there are all grades, all shadesand colors, all degrees of enmity or of partiality to state action.1516. Historical Foundation for Opposite Views. Enmity toexaggerated state action, even a keen desire to keep that actiondown to its lowest possible terms, is easily furnished with impressive justification. It must unreservedly be admitted thathistory abounds with warnings of no uncertain sort against indulging the state with a too great liberty of interference withthe life and work of its citizens. Much as there is that is attractive in the political life of the city states of Greece andRome, in which the public power was suffered to be omnipotent,-their splendid public spirit, their incomparable organic wholeness, their fine play of rival talents, serving both the commonthought and the common action, their variety, their conception ofpublic virtue, there is also much to blame, their too wantoninvasion of that privacy of the individual life in which alonefamily virtue can dwell secure, their callous tyranny over minorities in matters which might have been left to individualchoice, their sacrifice of personal independence for the sake ofpublic solidarity, their hasty average judgments, their too confident trust in the public voice. They, it is true, could not havehad the individual liberty which we cherish without breakingviolently with their own history, with the necessary order oftheir development; but neither can we, on the other hand, imitate them without an equally violent departure from our ownnormal development and a reversion to the now too primitivemethods of their pocket republics.-1517. Unquestionable as it is that mediaval history affordsmany seductive examples of an absence of grinding, heartlesscompetition and a strength of mutual interdependence, confidence,and helpfulness between class and class such as the modern economist may be pardoned for wishing to see revived; and truethough it be that the history of Prussia under some of thegreater Hohenzollern gives at least colorable justification to theLan .1817 is are tre, it is doultn tris Bat Re Janine idza isel of paternalinice , but & cooperation.THE OBJECTS OF GOVERNMENT. 631opinion that state interference may under many circ*mstances befull of benefit for the industrial upbuilding of a state, it must, onthe other hand, be remembered that neither the feudal system,nor the mediaval guild system, nor the paternalism of Fredericthe Great can be rehabilitated now that the nineteenth century haswrought its revolutions in industry, in church, and in state; andthat, even if these great systems of the past could be revived, weshould be sorely puzzled to reinstate their blessings without restoring at the same time their acknowledged evils. No studentof history can wisely censure those who protest against statepaternalism.Х1518. The State a Beneficent and Indispensable Organ ofSociety. It by no means follows, nevertheless, that because thestate may unwisely interfere in the life of the individual, itmust be pronounced in itself and by nature a necessary evil .It is no more an evil than is society itself. It is the organicbody of society: without it society would be hardly more thana mere abstraction. If the name had not been restricted to asingle, narrow, extreme, and radically mistaken class of thinkers,we ought all to regard ourselves and to act as socialists, believersin the wholesomeness and beneficence of the body politic. Ifthe history of society proves anything, it proves the absolutenaturalness of government, its rootage in the nature of man, itsorigin in kinship, and its identification with all that makes mansuperior to the brute creation. Individually man is but poorlyequipped to dominate other animals: his lordship comes by combination, his strength is concerted strength, his sovereignty is thesovereignty of union. Outside of society man's mind can availhim little as an instrument of supremacy; and government is thevisible form of society. If society itself be not an evil, neithersurely is government an evil, for government is the indispensableorgan of society.1519. Every means, therefore, by which society may be perfected through the instrumentality of government, every meansby which individual rights can be fitly adjusted and harmonizedwith public duties, by which individual self-development may bemade at once to serve and to supplement social development,ought certainly to be diligently sought, and, when found, seduпешеThese views are all right, but ifmust be remembered that this is an are oredustial combination , and thus we and forced to decidebetweenSoriclismandFrists,632 THE OBJECTS OF GOVERNMENT.lously fostered by every friend of society. Such is the socialism.to which every true lover of his kind ought to adhere with thefull grip of every noble affection that is in him.1520. Socialism and the Modern Industrial Organization. Itis possible indeed, to understand, and even in a measure to sympathize with, the enthusiasm of those special classes of agitatorswhom we have dubbed with the too great name of ' Socialists. 'The schemes of social reform and regeneration which they support with so much ardor, however mistaken they may be, andsurely most of them are mistaken enough to provoke the laughterof children, have the right end in view: they seek to bring theindividual with his special interests, personal to himself, intocomplete harmony with society with its general interests, commonto all. Their method is always some sort of coöperation, meantto perfect mutual helpfulness. They speak, too, a revolt fromselfish, misguided individualism; and certainly modern individualism has much about it that is hateful, too hateful to last. Themodern industrial organization has so distorted competition assometimes to put it into the power of some to tyrannize overmany, as to enable the rich and the strong to combine against thepoor and the weak. It has given a woful material meaning tothat spiritual law that " to him that hath shall be given, and fromhim that hath not shall be taken away even the little that heseemeth to have. " It has magnified that self-interest which isgrasping selfishness and has thrust out love and compassion notonly, but free competition in part, as well. Surely it would bebetter, exclaims the Socialist, altogether to stamp out competitionby making all men equally subject to the public order, to an imperative law of social coöperation! But the Socialist mistakes:it is not competition that kills, but unfair competition, the pretence and form of it where the substance and reality of it cannotexist.1521. A Middle Ground. And there is a middle ground . Theschemes which Socialists have proposed society cannot accept andlive; and no scheme which involves the complete control of theindividual by government can be devised which differs from theirsvery much for the better. A truer doctrine must be found, which1 Compare F. A. Walker's Political Economy ( Advanced Course) , sec. 346.THE OBJECTS OF GOVERNMENT. 633<gives wide freedom to the individual for his self-development andyet guards that freedom against the competition that kills, andreduces the antagonism between self-development and socialdevelopment to a minimum. And such a doctrine can be formulated, surely, without too great vagueness. med,1522. The Objects of Society the Objects of Government. - Government, as I have said, is the organ of society, its only potentand universal instrument: its objects must be the objects of society. What, then, are the objects of society? What is society?It is an organic association of individuals for mutual aid. Mutualaid to what? To self-development. The hope of society lies inan infinite individual variety, in the freest possible play of individual forces: only in that can it find that wealth of resourcewhich constitutes civilization , with all its appliances for satisfyinghuman wants and mitigating human sufferings, all its incitementsto thought and spurs to action. It should be the end of governmentto assist in accomplishing the objects of organized society. Theremust be constant adjustments of governmental assistance to theneeds of a changing social and industrial organization . Not licenseof interference on the part of government, but only strength, andadaptation of regulation. The regulation that I mean is not interference: it is the equalization of conditions, so far as possible, inall branches of endeavor; and the equalization of conditions is thevery opposite of interference.1523. Every rule of development is a rule of adaptation, a rulefor meeting the circ*mstances of the case '; but the circ*mstancesof the case, it must be remembered, are not, so far as governmentis concerned, the circ*mstances of any individual case, but thecirc*mstances of society's case, the general conditions of socialorganization. The case for society stands thus: the individualmust be assured the best means, the best and fullest opportunities,for complete self-development: in no other way can society itselfgain variety and strength. But one of the most indispensableconditions of opportunity for self- development government alone,society's controlling organ, can supply. All combinations whichnecessarily create monopoly, which necessarily put and keep indispensable means of industrial or social development in thehands of a few, and those few, not the few selected by societymust be athe inTo accomplish this ,thereFutomatic adjustment, asperitone tow andbyI survive correrif634 THE OBJECTS OF GOVERNMENT.itself, but the few selected by arbitrary fortune, must be undereither the direct or the indirect control of society. To society alonecan the power of dominating by combination belong. It cannotsuffer any of its members to enjoy such a power for their own private gain independently of its own strict regulation or oversight.1524. Natural Monopolies. It is quite possible to distinguishnatural monopolies from other classes of undertakings; their distinctive marks are thus enumerated by Sir T. H. Farrer in hisexcellent little volume on The State in its Relation to Trade whichforms one of the well-known English Citizen series: ¹--"1. What they supply is a necessary," a necessary, that is, tolife, like water, or a necessary to industrial action, like railroadtransportation."2. They occupy peculiarly favored spots or lines of land. "Here again the best illustration is afforded by railroads or bytelegraph lines, by water-works, etc."3. The article or convenience they supply is used at the placeand in connection with the plant or machinery by which it is supplied "; that is to say, at the favored spots or along the favoredlines of land."4. This article or convenience can in general be largely, if notindefinitely increased, without proportionate increase in plant andcapital "; that is to say, the initial outlay having been made, thefavored spot or line of land having been occupied, every subsequent increase of business will increase profits because it will notproportionately, or anything like proportionately, increase theoutlay for services or machinery needed. Those who are outsideof the established business, therefore, are upon an equality of competition neither as regards available spots or lines of land nor asregards opportunities to secure business in a competition of rates."5. Certain and harmonious arrangement, which can only beattained by unity, are paramount considerations. " Wide andsystematic organization is necessary.1525. Such enterprises invariably give to a limited number of personsthe opportunity to command certain necessaries of life, of comfort, or of industrial success against their fellow-countrymen and for their own1 P. 71. Sir Thomas Farrer is Permanent Secretary of the English Boardof Trade (sec. 876) .THE OBJECTS OF GOVERNMENT. 635Noadvantage. Once established in any field, there can be no real competition between them and those who would afterwards enter that field.agency should be suffered to have such control except a public agencywhich may be compelled by public opinion to act without selfish narrowness, upon perfectly equal conditions as towards all , or some agency uponwhich the government may keep a strong hold of regulation.― 1526. Control not necessarily Administration . Society can byno means afford to allow the use for private gain and withoutregulation of undertakings necessary to its own healthful andefficient operation and yet of a sort to exclude equality in competition. Experience has proved that the self-interest of those whohave controlled such undertakings for private gain is not coincident with the public interest: even enlightened self-interest mayoften discover means of illicit pecuniary advantage in unjust discriminations between individuals in the use of such instrumentalities. But the proposition that the government should controlsuch dominating organizations of capital may by no means bewrested to mean by any necessary implication that the governmentshould itself administer those instrumentalities of economic actionwhich cannot be used except as monopolies. In such cases, as SirT. H. Farrer says, " there are two great alternatives. (1) Ownership and management by private enterprise and capital underregulation by the state. (2) Ownership and management by Government, central or local. " Government regulation may in mostcases suffice. Indeed, such are the difficulties in the way of establishing and maintaining careful business management on the partof government, that control ought to be preferred to direct administration in as many cases as possible, — in every case in whichcontrol without administration can be made effectual .1527. Equalization of Competition . There are some things.outside the field of natural monopolies in which individual actioncannot secure equalization of the conditions of competition; andin these also, as in the regulation of monopolies, the practice ofgovernments, of our own as well as of others, has been decisivelyon the side of governmental regulation. By forbidding childlabor, by supervising the sanitary conditions of factories, by limiting the employment of women in occupations hurtful to theirhealth, by instituting official tests of the purity or the quality ofThe buن誓The obtigations to2.to for636 THE OBJECTS OF GOVERNMENT.goods sold, by limiting hours of labor in certain trades, by a hundred and one limitations of the power of unscrupulous or heartlessmen to out-do the scrupulous and merciful in trade or industry,government has assisted equity. Those who would act in moderation and good conscience in cases where moderation and goodconscience, if indulged, require an increased outlay of money, inbetter ventilated buildings, in greater care as to the quality ofgoods, etc. , cannot be expected to act upon their principles solong as more grinding conditions for labor or a more unscrupuloususe of the opportunities of trade secure to the unconscientious anunquestionable and sometimes even a permanent advantage; theyhave only the choice of denying their consciences or retiring frombusiness . In scores of such cases government has intervened andwill intervene; but by way, not of interference, by way, rather,of making competition equal between those who would rightfullyconduct enterprise and those who basely conduct it. It is in thisway that society protects itself against permanent injury anddeterioration, and secures healthful equality of opportunity forself- development.Smeat -shops.- 1528. Society greater than Government. Society, it must always be remembered, is vastly bigger and more important thanits instrument, Government. Government should serve Society,by no means rule or dominate it. Government should not bemade an end in itself; it is a means only, - a means to be freelyadapted to advance the best interests of the social organism. TheState exists for the sake of Society, not Society for the sake ofthe State.1529. Natural Limits to State Action . And that there arenatural and imperative limits to state action no one who seriouslystudies the structure of society can doubt. The limit of statefunctions is the limit of necessary coöperation on the part of Society as a whole, the limit beyond which such combination ceasesto be imperative for the public good and becomes merely convenient for industrial or social enterprise. Coöperation is necessary in the sense here intended when it is indispensable to theequalization of the conditions of endeavor, indispensable to themaintenance of uniform rules of individual rights and relationships, indispensable because to omit it would inevitably be toTHE OBJECTS OF GOVERNMENT. 637hamper or degrade some for the advancement of others in thescale of wealth and social standing.1530. There are relations in which men invariably have needof each other, in which universal coöperation is the indispensable condition of even tolerable existence. Only some universalauthority can make opportunities equal as between man and man.The divisions of labor and the combinations of commerce may forthe most part be left to contract, to free individual arrangement,but the equalization of the conditions which affect all alike mayno more be left to individual initiative than may the organization of government itself. Churches, clubs, corporations, fraternities, guilds, partnerships, unions, have for their ends one oranother special enterprise for the development of man's spiritualor material well-being: they are all more or less advisable. Butthe family and the state have as their end a general enterprisefor the betterment and equalization of the conditions of individualdevelopment: they are indispensable.1531. The point at which public combination ceases to beimperative is not susceptible of clear indication in generalterms; but it is not on that account indistinct. The bounds offamily association are not indistinct because they are markedonly by the immaturity of the young and by the parental andfilial affections, things not all of which are defined in the law.The rule that the state should do nothing which is equally pos- 1sible under equitable conditions to optional associations is asufficiently clear line of distinction between governments andcorporations. Those who regard the state as an optional, conven- /tional union simply, a mere partnership, open wide the doors tothe worst forms of socialism. Unless the state has a nature whichis quite clearly defined by that invariable, universal, immutablemutual interdependence which runs beyond the family relationsand cannot be satisfied by family ties, we have absolutely no criterion by which we can limit, except arbitrarily, the activities ofthe state. The criterion supplied by the native necessity of staterelations, on the other hand, banishes such license of state action.1532. The state, for instance, ought not to supervise private moralsbecause they belong to the sphere of separate individual responsibility ,not to the sphere of mutual dependence. Thought and conscience are638 THE OBJECTS OF GOVERNMENT.private. Opinion is optional. The state may intervene only where common action, uniform law are indispensable. Whatever is merely convenient is optional, and therefore not an affair for the state. Churchesare spiritually convenient; joint-stock companies are capitalistically convenient; but when the state constitutes itself a church or a mere businessassociation it institutes a monopoly no better than others. It should donothing which is not in any case both indispensable to social or industriallife and necessarily monopolistic.1533. The Family and the State. It is the proper object of thefamily to mould the individual, to form him in the period of immaturity in the faiths of religion and in the practice of moralityand obedience. This period of subordination over, he is calledout into an independent, self-directive activity. The ties offamily affection still bind him, but they bind him with silken,not with iron bonds. He has left his ' minority ' and reached hismajority. It is the proper object of the state to give leave tohis individuality, in order that that individuality may add itsquota of variety to the sum of national activity Family discipline is variable, selective, formative: it must lead the individual.But the state must not lead. It must create conditions, but notmould individuals. Its discipline must be invariable, uniform,impersonal. Family methods rest upon individual inequality,state methods upon individual equality. Family order rests upontutelage, state order upon franchise, upon privilege.1534. The State and Education. In one field the state wouldseem at first sight to usurp the family function, the field, namely,of education. But such is not in reality the case. Education isthe proper office of the state for two reasons, both of which comewithin the principles we have been discussing. Popular educationis necessary for the preservation of those conditions of freedom,political and social, which are indispensable to free individualdevelopment. And, in the second place, no instrumentality lessuniversal in its power and authority than government can securepopular education . In brief, in order to secure popular educationthe action of society as a whole is necessary; and popular education is indispensable to that equalization of the conditions of personal development which we have taken to be the proper object.of society. Without popular education, moreover, no governmentTHE OBJECTS OF GOVERNMENT. 639which rests upon popular action can long endure: the people mustbe schooled in the knowledge, and if possible in the virtues, uponwhich the maintenance and success of free institutions depend.No free government can last in health if it lose hold of the traditions of its history, and in the public schools these traditions maybe and should be sedulously preserved, carefully replanted in thethought and consciousness of each successive generation .1535. Historical Conditions of Governmental Action. - Whatever view be taken in each particular case of the rightfulness oradvisability of state regulation and control, one rule there is whichmay not be departed from under any circ*mstances, and that isthe rule of historical continuity. In politics nothing radicallynovel may safely be attempted. No result of value can ever bereached in politics except through slow and gradual development,the careful adaptations and nice modifications of growth. Nothing may be done by leaps. More than that, each people, eachnation, must live upon the lines of its own experience. Nationsare no more capable of borrowing experience than individuals are.The histories of other peoples may furnish us with light, but theycannot furnish us with conditions of action. Every nation mustconstantly keep in touch with its past; it cannot run towards itsends around sharp corners ter artheless to mey set a1536. Summary. This, then, is the sum of the whole matters of kthe end of government is the facilitation of the objects of society.The rule of governmental action is necessary cooperation. Themethod of political development is conservative adaptation, shaping old habits into new ones, modifying old means to accomplishnew ends.

INDEX.SUPPLEMENTARY TO THE TOPICAL ANALYSIS.[ The references are to sections. ]Accounts, French Chamber of, origi- nated, 378 , Prussian Supreme Cham- ber of, 577.Appeal , French Courts of, 472; the Eng- lish Court of, 922.Appeals, U. S. federal Courts of, 1311.Achæans, supremacy of, in Homeric Archon, creation of the office of, in times, 78.Adaptation the rule of political action,1435 et seq. , 1445-1448 , 1535.Adjudication as a source of Law, 1421 ,1422.Administration , organization of Greek,159; sphere of imperial, in Germany,530, 542-555 .Athens, 119; number of archons in- creased to nine, 120; the, Eponymus,120; the, Basileus, 120; the, Polemarchus, 120; the Thesmothetæ, 120.Areopagus, the Senate of the, relationsof Solon to, 134; powers of, curtailed by Ephialtes, 153.Argos, supremacy of, 80.Administration and legislation, under Aristocracy, English and ancient, conmodern systems, 1384-1386 .' Administration , ' the, of the Prussian Government District, 600-603; itsPresident, 603; its methods of work,602.Administrative Courts, French, 468, 469;Prussian, 626-628; Swiss, 727.Administrative system of the Frankishmonarchy, 477 et seq.Ægean, Greek settlement of, 67.Agriculture, English Board of, 877;Department of ( U.S. ) , 1350.trasted, 1403 .Aristotle's analysis of the forms of gov- ernment, 1395, 1396; his cycle of de- generacy and revolution , 1397; in thelight of the modern facts of politics,1398 et seq.Army, reform of Roman, by Servius ,162-165; place and power of Roman,under the Empire, 227; administra- tion of German , 553; Swiss federal,680; the Austro-Hungarian, 750; inSweden and Norway, 806.Alexander, Hellenization of the East by, Arrondissem*nt, the French, 347; scru- 88.Amendment of French constitution 399 ,410, 411; of the German constitution ,499; of the Swiss federal, 698; of theSwedish constitution , 822; of the Norwegian constitution , 830; of American state constitutions, 1101-1107; of the American federal, 1262.tin d', 402, 455.Arrondissem*ntal Council , French, 455.Arsenals and dockyards of the United States, 1269.Articles of Confederation , the, 1068 .Aryan, the, family, 6–8.Aryan Races, the, their significance in the history of government, 2, 3.America, the English occupation of, Asia Minor, settlement of the coasts of,1032.Amphictyony, the Delphic, 75.Amtsgericht, the Prussian , 618, 619, 625.Ancestors, primitive worship of, 25, 26.641by the Greeks, 67.Assemblies , the colonial, in Virginia,1047; their development, 1056 , 1057.Assembly, the Athenian popular, insti-642 INDEX.362.tuted by Solon , 132; payment for Bourgeoisie, gift of, by French kings.attendance upon the Athenian, 155:the Spartan, 109; summoned by the Ephors, 111; relations of, to Lycur- gus, 117; the French Constituent, ofthe Revolution, 388, 390; French con- stituent, of 1871-1876, 394; the FrenchNational, 399, 410–417.Brandenburg, the Mark, 481 et seq.Budget, the national, in England, 880;the county, 971-973.Budget Committee, the French, 434.Bundesgericht, the Swiss , see FederalCourt.Athens, see Topical Analysis , tenure of Bundesrath, the German, its composiproperty in, 1500 .Audit , Court of, French, 469.Auditor, The, of an American state,1202 , 1204.Augustus, transmutation of republicaninto imperial institutions by, 214-219.Australia, the governments of, 1023.Austria, originated in Ostmark, 481;won by Rudolph of Habsburg, 482; in the German Confederation , 489; out ofGermany, 492; see Topical Analysis.Authority, government rests upon, 1387 .Baden, relations of, to other GermanStates, 487, 491 , 493, 496.Bailli, use and development of office of,in France, 380 , 381 .Ballot, The, in the U. S., 1146.Basileus, the archon, 120.Bavaria, relations of, to other German States, 487, 491 , 493, 496; independent administration of railways, 546; in- dependent postal and telegraph ser- vice, 551; and military administration,553.Benefice, the feudal, 305; in Englandand France, 309.Berlin, government of, 616.Bernadotte , 789.Bluntschli , Dr. J. C. , definition of astate, 12.Board of Trade, the English, 876.Bohemia, acquisition of, by Austria, 731,732; history of, 740-742.Bonapartists, French, 394.Boroughs , English, representation of,in House of Commons, 848, 850, 891;geographical relations of, to countiesin parliamentary representation , 893;' County ' boroughs, 955 , 995; creationand constitution of, 989-992; judicialstatus of, 993; classes and powers of,995-1000; and urban districts , 1001;American, 1246 et seq.Bosnia, 737, 751.tion and character, 500; representa- tion of the states in, 501; functionsof, 504-509; its organization, 510–515 .Bundesrath, the Swiss, see FederalCouncil.Burke, Edmund, on the development of the colonial assemblies in America,1056.Cabinet , the French, 419, 421; the Eng- lish, its origin, 856; stages of its de- velopment, 857; history of ministerial responsibility , 858, 859; as Executive,860, 889; the Sovereign not a memberof, 861; position of, 862; appointment of, 863; its composition , 864-867; its parliamentary responsibility , 868, 869;its legal status, 870; its function inlegislation, 871.Cæsar, Julius, place in Roman constitutional history, 216.Canada, the Government of, 1016-1022.Cantonal Legislatures, the Swiss, 646-649; Executives, in Switzerland, 650.Cantons, the French, 456; the Swiss,governments of, see Topical Analysis.Capets, concentration of feudal powerby the, 323, 352, 371 , 372.Carolingians , rise and influence of,322Cassation Court, the French, 472; courts of the Swiss cantons, 705; chamber of the Swiss federal court, 726.Censor, Roman, 191 .Centuries created by Servius, 163; par- ticipate in the choice of consuls , 165- 170; later civil functions of, 205.Chambers, French, sovereignty of, 399;as National Assembly, 410-417; gov- ernment by the, 435; in case of unlawful dissolution of, 409.Chancellor , the Imperial, in Germany,533-539; in the Bundesrath, 510, 511 ,540; and the Vice Chancellor, 541;the Swiss federal, 685.INDEX.643Chancellor, the Lord, in England, 888 , Classes, the four property, created by 925.Chancery, English Court of, its origin,847; division of the High Court, 920,921.Change, principles of, in primitive so- ciety, 30, 32-41; effected by competi- |tion of customs , 33, 34; by migration and conquest, 36, 37; by imitation andby individual initiative, 39, 40.Charles the Great promulgates version of the Roman Law, 297 , 321; establishes Holy Roman Empire, ' 320.Charters, American colonial, 1050-1052;and constitutions, rôle of, in modernpolitical development, 1368 et seq .Choice in the development of institu- tions , 20; of rulers a step of development in primitive society, 40.Church, the Roman Catholic as a unifying force in the Middle Ages, 318,319.Circle (County) , the Prussian, 606-610;the basis of local government, 611;its Committee, 607 , 627; its Diet, 608,609; the Austrian financial , 773 .Cities, Imperial, of Holy Roman Em- pire, 483; Prussian , government of,613-617; English, government of, see Boroughs; American, 1246 et seq;their organization, 1251-1253.Citizen, approach of the ancient Greek or Roman, to complete membership of the state, 52.Citizenship, begins to be dissociatedfrom kinship, 243; Roman, and the law, 272; in the German Empire, 556,1124; in Switzerland, 660, 1124; in Austria-Hungary, 760; in Sweden- Norway, 811; in the U.S. , 1119, 1120;elements of confusion touching, 1121;naturalization, 1122, 1123; under aconfederation , 1125.' City, ' the ancient, at first a confeder- ate centre, 49-52; contrasted withmodern centres of population, 49; aconfederacy of ' houses, ' 51; religionof the, 56; decay of the antique , 57;absorbs its constituent parts , 59-61;the, of Solon, 118; the, the centre ofancient politics , 241.Solon, 128; the five property , createdby Servius, 163; non-citizen , in Athens,157; in Sparta, 104; in Rome, 176;constitutional influence of, in Rome,177-190; in general in ancient politics,244.Cleisthenes , reforms of, in Athens , 141- 148; success of constitutional measures of, 149; new citizens introducedby, 142; legislation of, with regard to demes, 143; new tribes of, 144; newphratries, 145; expansion of jury courts, 147; ostracism, 148; effects of reforms of, 149–151.Code, the , of Draco, 122-126; the first Roman, the XII. Tables, 253; the, ofTheodosius, 280, 326; of Justinian ,280; of Alaric , 297 , 326; of Sigismund,297; of Napoleon, 337 , 342.Codrus, the last king of Athens, 118;family of, in the archonship, 119.Colonial, English, expansion , 1011; Eng- lish, policy, 1012-1014; courts, powers of, 1024, 1025; governors, powers of,1027; organization in New England,1040; expansion without separation in the South, 1044; society in the South,1045 .Colonies, English, government of, see Topical Analysis; in New England,1035-1040; in the South, 1042-1048;the Middle, in America, 1049; devel- opment of constitutional liberty in the American, 1056-1058; their political sympathy, 1059; separateness of their governments, 1066.Colonies, the Greek, and the Greek colonial system , 70; constitutions ofGreek, 71 , 72; law of constitutionalmodification among Greek, 73.Columbia, District of, 1266, 1268; thecourts of, 1319, 1320.Comitatus, the Teutonic , 290, 293; and the feudal relations , 309.Comitia curiata , 160; elects Tribunes,178; survives changes, 205; centuriata, creation and character, 163, 165;chooses consuls, 166-168; later powersof, 205; tributa absorbs legislativesovereignty, 205.Civil Service Reform, 1330-1332; Com- Commendation , feudal, 310.mission, 1351.Claims, U.S. Court of, 1312.Commerce, Interstate, regulation of, inU.S. , 1116 .644 INDEX.Commission, the French Departmental, | Connecticut, Charter of, 1051.453.Committees , French legislative, 431-434;of German Bundesrath, 514; of German Reichstag, 526.Committees, Standing, in Americanstate legislatures, 1141 , 1142; of the federal Senate (U.S. ) , 1280-1283; of the federal House of Representatives(U.S.) , 1293–1298.Conquest, effect of, on race habits and institutions, 37; effects of, on Roman constitution , 173, 199-203; effects of,upon Teutonic institutions, 300-303;effects of, upon Teutonic institutionsin England, 834.Concilia plebis, 181 , 186, 205.Consilium tributum plebis elects Tribunes, 181.Common Law courts, in American Constantine, governmental reforms of,states , 1151-1162.Common Pleas, English Court of, itsorigin, 847.Commons, House of, its origin, 954; its original character, 890; county and borough representatives in, 891; reform of representation in, 894-900;election and term of, 901-904; sum- mons, electoral writ, prorogation , 905- 908; organization of, 909; hall andseating of, 910.Communes, mediæval rural, in France,357; the modern French, their organi- zation, functions, etc. , 457-467; thePrussian rural, 612; the Prussian city,613-618; the Swiss , 660-662; the Austrian, 773 , 774; the Hungarian, 782;the Swedish, 821; the Norwegian, 829.Competition, Equalization of, 1521 .Comptroller, the, of an American state,1202, 1204.Comptroller- General, position and power of, in pre-revolutionary France, 386.Conceptions, certain legal, universal,1449.Confederacy of the Rhine, 487-489, 496.Confederation , principle of, in primitive society, 48-52; a, contrasted with amodern federal state, 1372-1376.Confederation, the Swiss, its emergencein Germany, 484; the German, of 1815,489; the North German, 491; the American, of 1781 , 1067; its constitu- tion, 1068; its weakness, 1069; citizenship under a, 1125.Conflict of Laws in the U.S. , 1108-1114.Conflicts, French Tribunal of, 475;Prussian Court of, 628; Swiss Federal Assembly as a court of, 701.Congress, the, of the Confederation,1067-1169; of the U.S., 1273 et seq.;Acts of, 1299-1305; and the Executive, 1283, 1298, 1334, 1335.233-237; separation of civil from military command by, 233; territorialdivision of the Empire by, 233-235;civil provincial officers under, 233-235;military provincial officers under, 236;household offices established by, 237.Constituent functions of government,1478, 1496-1503.Constitution, Spartan, 101 et seq.; an- cient Roman, 164; tendencies of later Roman republican , 204-206; theFrench, framing of, 396; character of,398, 399; amendment of, 399, 410, 411- 414; the Swiss, 635; its character,636-638; its indefinite grants, 639;its guarantee of cantonal constitutions, 641; its amendment, 698;Austro-Hungarian, of 1867, 743, 745;the Swedish, oscillating development of, 788; its amendment, 822; the Nor- wegian, 792, 793; its amendment, 830;the English, 917; of the U.S., and colonial precedents, 1071-1073; char- acter of the government formed by it,1074 et seq.; powers granted by it to the federal government, 1092; powerswithheld by it from the states , 1093;powers left by it to states, 1094, 1095;its general character, 1262; its amend- ment, 1262.Constitutional development, English , as compared with American , 1060 et seq.Constitutions, Greek, 100; American state, non-constitutional provisions in, 1096-1099, 1130; amendment of,1101-1107.Consuls, Roman, creation of office of,166; chosen by Comitia Centuriata,166-168; relations of, to Senate, 171 ,172; steps towards the admission ofplebeians to office of, 192; under theEmpire, 215, 216 , 220; of Italian towns,359.INDEX. 645Contract, absence of the idea of, fromprimitive society, 13; the, theory ofthe origin of government , 14.Control , Central , over local administra- tive bodies in France, 454, 455 , 464-467; in England, 999, 1000, 1003, 1009;in American state governments, 1184- 1188, 1206-1208.1090 , 1322; the, of American states ,1147-1172; of the U. S. , 1310 et seq.;their procedure , 1321 .Crete, power and institutions of, 79.Criminal law, diversities of, in U.S. ,1112.Croatia, acquired by Austria, 735.Croatia-Slavonia, government of, 783.Control not necessarily administration, Crown Colonies, government of the pres- 1526.Conveniences of society, the, adminis- tration of, by the state , 1509.Corporations, law-making by, 1428;regulation of, by the state , 1507.Corpus Juris Civilis , 281 , 282; study of,in the Middle Ages, 281 , 328; subsidiary authority in Germany, 343.Council of Elders under patriarchal presidencies, 44, 45; the Spartan , 108;election to Spartan , 110; probouleutic legislative functions of Spartan, 108;judicial functions of Spartan , 108, 111 ,113; associated with early Romankings, 160.Council of Ministers, French, 419, 422;Prussian, 576.Council of State, the French , originates in Feudal Court , 377 , 378; its develop- ment and differentiation , 378; its com- position and functions, 468; the Prus- sian, 575; the Norwegian, 823, 824.Council of States (Ständerath) , The Swiss, its composition , 693, 694; its functions, 696-698.Councils, the English County, theirconstitution, 957-961; their powers,964, 974; American city, 1251.County, the English, and the SaxonKingdom, 836; representation of, in House of Commons, 891; geographicalrelations of, to boroughs in parlia- mentary representation , 851 , 893; its historical rootage, 942; early evolution of its organs, 943; see TopicalAnalysis; the, in the U. S. , 1240-1242;in the South, 1046, 1243; where thetownship exists, 1245 .County Courts, the English, at present,927-929; the ancient, 942, 943.Courts, the English law, their deriva- tion, 847; their present compositionand jurisdiction , 919 et seq.; powersof English colonial, 1024; interpreta- tion of federal law by American state,ent English, 1027; in America, 1055.Crusades , the, and the medieval towns,363; and the mediaæval French monarchy, 372.Curies, the Roman , confederate part inearly politics , 160; exclusive Assemblyof (Comitia curiata) , elects Tribunes ,178; survives change, 205 .Custom, the reign of, in primitive so- ciety, 27 , 28; and written law in France, 327; local, and Roman lawin France, 337-342; as a source oflaw, 1417 , 1418, 1429, 1430.Customs, differences of, in primitive society, 31; antagonism between, 32;competition of, 33; prevalence of superior, 34 .Czar, the, of Russia, nature of his power,1439, 1446 .Dalmatia, acquired by Austria, 736.Danes, The, 784.Decemvirs, The, 253.Delegations, the Austro-Hungarian , 755.Delos, the Confederacy of, and its influence upon the position of Athens, 82;transmuted into Athenian empire, 84.Delphi, centre of an amphictyony, 75;influence of the Oracle at, 77; seat ofreligious games, 81.Demes, new arrangement and combina- tion of, by Cleisthenes, 143.Añuos (people) , the primitive Greek,composition and character of, 48.Democracy, its present and future prev- alence, 1404; the modern, differentin form from the ancient, 1405; andalso in nature, 1406; growth of the democratic idea, 1407.Denmark, union of, with Sweden andNorway, 786.Departments of Administration, func- tions of French, 438; the German imperial, 530-554; the Prussian, 573;the Swiss federal , 672-674; the Com-646 INDEX.mon, of Austria-Hungary, 749; and the Delegations, 755; the Austrian,762; the Swedish, 815; the Norwe- gian, 824; the English, 873 et seq.; American federal, 1336-1351.Departments, the French, organized by Napoleon, 390; their present organiza- tion, 442-454.Deputies , French Chamber of, composi- tion, etc. , of, 402-404; dissolution of,by President, 415-418.De-socialization, modern, of the state,1492.Development of government, probable early, see Topical Analysis; continuity of, 1352; order discoverable in,1354; course of, in the ancient world,1354; England's contributions to, 1356et seq. contributions of the Romans to , 1357 et seq.Diet, Hungarian, 778-781.Diocletian, division of Empire by, 231,232.Discipline , the Spartan state, 114,117.Discussion begins to determine institu- tions, 245; scientific, as a source of Law, 1426.Economic relations of Austria and Hun- gary, 753.Edict, the Prætor's, 260; of the Romanprovincial governors, 268; codification of the, 279.Education Department of the English Privy Council, 883, 1007 .Education, Public, plan of, in England,1008; a function of the state, 1511,1534.Elders, Council of, under patriarchalpresidencies, 44, 45; loss of separatepowers, 60; the Spartan Council of,108; election of Spartan, 110; judicial functions of the Spartan Council of,108, 111 , 113; probouleutic legislative functions of, 108; loss of importanceby, 243.Elgin, Lord , on the powers of English colonial governors , 1019.Emperor, the Austrian, as Emperor- King, 746-748; as monarch of Austria,761, 765; power of, to legislate in recess of Reichsrath , 770; as King of Hungary, 775.Emperor, the German, 497, 498; shares sovereignty of the Empire only as King of Prussia, 500.and powers of, 214-218; nationality of later incumbents of office of, 226.Empire, Athenian, 84.Empire, the German, origination of present, 493 , 496; government of, seeTopical Analysis.Dissolution of French Chamber of Dep- Emperor, the Roman, creation of officeuties by the President , 415-418 .District, Prussian Government, 599-604;its Committee, 604, 627; the PrussianMagisterial, 611; Courts, Prussian,618 et seq.; Courts, Prussian Supe- rior, 618 et seq.; the Swiss, 659; English local government, rural, 984;urban, 986; women voters in English,987.District Attorney, the U.S. , 1317.Divorce, conflict of laws touching, in U.S. , 1109, 1110.Domains, Prussian Chamber of Warand, 561 et seq. , 600; fusion of the administration of War and Domainsin Prussia, 565; Chambers, Prussian ,563, 564.Draco, his code, 122-126.Durham, Lord, in Canada, 1014.East, Hellenization of, by Alexander,88; character of Greek civilization in the, 89-90.Economic Council, the Prussian, 578.'Economic laws, ' in Sweden, 796 .Empire, ' Holy Roman ,' establishment and influence of, in Middle Ages, 320,321; influence of, on spread of Roman law in Germany, 343; history of, 340 et seq.Empire, Roman, establishment of, 209,211-218; causes which led to , 203-212;growth of new offices under, 222, 228-230, 233-238; division of Roman into Eastern and Western, 90 , 99, 239, 240;effect of, upon politics , 248; unifying influence of the Holy Roman, in theMiddle Ages , 320 , 321.England, entrance of Roman law into,349, 350.English, the, and the Romans com- pared, 1357-1359; contrasted, 1360,1361.English institutions , adaptation of, inINDEX . 647America, 1033, 1034, 1060 et seq .; grew by consolidation, 1061 .tinguishing marks of the modern,1377-1379.Ephialtes, constitutional reforms of, in Federation the process of growth in Athens, 153.Ephors, the Spartan, 111, 112.Eponymus, the Archon, 120.Equity, courts of, in American states ,1163-1165; fusion of, with commonlaw, 1164; as a source of law, 1423- 1425.Estates, Prussian Communal, 598.Estimates , the, in England, 881 .Ethics, Law and, 1454.Eupatrids, the Athenian, and the early archonship, 120; and the party of the plain, 121; as landlords and creditors ,128, 129; preferred for office under the Solonian constitution, 130; shutout from exclusive privilege by Cleis- thenes, 142-147.Exchequer, English Court of, its origin,847; the Chancellor of the, 880.Executive, administrative and judicial powers ofFrench, 436; the Swiss cantonal , 650; the Swiss federal, 663 et seq.; of an American state, 1174-1182;contrasted with federal, 1183; its realcharacter, 1185-1188; several officers of, 1189-1205; constitutional diffusionof, 1206; no hierarchy, 1208; the fed- eral (U.S. ) , 1323 et seq.; relations of,to Congress , 1283, 1298, 1334, 1335.Family, the, its origin: was it patriarchal? 5; the Greek and Roman, 6;development of the state from thepatriarchal, 8; the primal unit ofpolitical organization , 22; and thestate, 1533.Father, the, authority of, necessary toperfected government in primitive society, 21; early sanction of authority of, 22; primitive priesthood of the,53, 54.Federal Assembly, the Swiss, 686–701.Federal control in Switzerland, 681.Federal Council , the Swiss, 664-677; itsmixed functions, 675-679; as an administrative court, 727.Federal Court, the Swiss, its origin ,636, 684, 712; its composition, 713; itsjurisdiction , 717-726.Federal State, the modern, contrastedwith Confederations, 1372-1376; disAmerica, 1061.Feudalism , a fusion of Germanic with Roman institutions and conceptions ,299; defined , 304; local differences inmethods of, 309; results of, 311-314;unifying influences checking, 317–321;centralizing forces resulting from,322-324; and sovereignty, 313; andthe towns, 314; effects of, in France,351 , 353-355; and the Crusades , 363,372; in Germany contrasted withfeudalism in France, 476 et seq .; in Switzerland, 630; the Norman, in England , 839; the feudal system in Eng- land , 841; and the modern monarch,1355; and the functions of government, 1489-1491.Finance, administration of, in Prussiadown to time of Frederic the Great,563, 564.Folk-moot, the English, 946.Force at the basis of government, 1387 et seq.; in ancient and in modern systems, 1389, 1390.Foreign Affairs, in the German Empire,542.Forms of government, 1394 et seq. SeeTopical Analysis.France, entrance of Roman law into,335-342 . See Topical Analysis.Franchise, the parliamentary, in Prus- sia, 583, 584; parliamentary , in Aus- tria, 765; Hungarian, 778; Norwegian,825; in England, 891 , 894-896; in the English county, 962; in the English parish, 978; in Eng. districts , 985-987;in the English boroughs , 992; in the American states, 1121 , 1143 , 1144; infederal elections ( U.S.) , 1291 , 1292.Frederic the Great, 486 .Functions of Government, see TopicalAnalysis.Galicia, 736.Games, the various sacred , 81; influenceof, in Greece , 81 .Gemeinde, the Swiss, see Communes.General Council , the, of the FrenchDepartment, 409 , 447-452.'Generality, ' the French, 384; givesplace to modern Department, 390.648 INDEX.Gens, see House.' Helots, the Spartan, 103.Germany, entrance of Roman law into, Helvetic Republic, the, 634.343-348. Herzegovina, 737, 751 .Gneist, Professor, influence of, upon High Court of Justice , the English, 920,Prussian administration , 568. 921, 926, 928 , 931.Gods, private family and city, in primi- Hobbes, Thomas, the Leviathan of, 14;tive times, 54.Government, its origin in kinship, 4;choice in the development of, 20; itsbeginnings in the discipline of thepatriarchal family, 21; an organ ofsociety, 1393, 1518, 1522 , 1528. SeeTopical Analysis.Governors, powers of English colonial,1027; of American states, 1174; their term of office, 1178; their qualifica- tions, 1179; their relations to otherstate officials, 1183-1187 , 1206; their duties and powers, 1189-1194.Gracchi, the, measures and fate of, 212.Graf, The, as an official under theFrankish monarchy, 477, 478, 480.Great Council, The, of the Norman kings , 840; evolution from it of Par- liament, the Cabinet, and the courts of law, 843 et seq.Greater Britain , 1031.Greece, Governments of, see TopicalAnalysis.Greeks, original migrations of, 63-65;influence of the Phoenicians upon the,66; remigrations and settlement ofthe Mediterranean, 67-69; colonial system of the, 70-73; union and nationality among, 74; religious com- munity among, 75-77; political aggre- gations of, 78–80; games and festivalsamong, 81; eastern and western, 89,98; subjection of the, to Rome, 99.Guilds, the medieval trade, 315.Gustaf Adolf, 788.Gustaf Eriksson, 787.Habit conditions legal development,1435-1444.Hardenberg, Count, 567.Heliæa, institution of the, in Athens,and character and functions of, 133;expansion of, by Cleisthenes , 147.' Hellas , ' meaning of the term, 62; law of constitutional modification in, 73.See Topical Analysis.Hellenotamiæ, officers of the Delian Confederacy, 82.views on the origin of political soci- ety, 14; theory of a Law of Nature,14; idea of an original state of war, 14.Hohenstaufen, the, 482.Home Office, the English, 874.Home Rule in Bohemia and Hungary,740, 741.Hooker, Richard , Ecclesiastical Polity,14; on the law of Nature in its con- nection with the origin of society,14.House , ' The, or gens, 8; a completeorganism within the ancient ' city, '49; its junction with a phratry, 50;a constituent member of the ' city,'51; political disintegration of, 60,61.House of Representatives, see Repre- sentatives, House of.Household Officers, under the RomanEmpire, 228 , 237; in the French Mon- archy, 377.Houses, reasons for two legislative, in England, 852, 853; in U.S. , 1133-1136;names of two legislative, in American states, 1138.Hundred, the English, and its moot,'835.Hungary, acquisition of, by Austria,731, 734; relations of, to Austria, 738.See Topical Analysis .Imitation , tribal and individual, a forceof change in primitive society, 39,40.Impeachment, history of ministerial, in England, 858; disappearance of, in England, 859.India, government of British, 1028–1030.Individualism , unknown in ancient poli- tics , 1408; introduced with Christianity and the prevalence of Teutonic institutions, 1409; relative underfeudal system , 1410; destroyed bythe modern monarchy in its first forms, 1411; revived by Renaissance and Reformation , 1412.Initiative, popular, in Switzerland, 654:INDEX. 649individual , entrance and influence of,in primitive society , 39.Instruction, Superior Council of Public,French, 469.sanction from the ' Law of Nature,'269, 271; influence of the jurisconsultsupon the, 274.Jus respondendi, the , 275–277.Intendant, the French, 383; and the Justice, tribal, under patriarchal presiComptroller-General, 386.Inter-cantonal judicial comity in Switz- erland, 728.Interior, Department of the (U.S.) , 1346– 1349.International Law, 1457-1459.Interpellations in the French Chambers,428.Interpretation, growth of Roman lawby, 254, 258-260, 274 , 275; as a source of law, 1421 , 1422.Interrex, The Roman, 160.Interstate Commerce, regulation of,in U.S. , 1116; the, Commission,1151.Ireland, the administration of, 887 .Italy, Roman government of, 197.Joint Councils, The, of Sweden and Norway, 809.Judges, election of American state, 1168-1170; and qualifications required ofthem , 1171; appointment and tenure of federal, 1315; their relations toeach other, 1316.Judices, the Roman, 255–257.Juries, in England in civil cases , 930.Jurisconsults, the Roman, under theEmpire, 275-281 .Jurisdiction (judicial) of the U.S. , 1306,1307; of existing federal courts, 1310- 1314.Jurisprudence, 1465 et seq.; analytical school of, 1466, 1468-1471.Jurists, the Roman, 273; their influence,274; as jurisconsults, 275-281.Jury-courts, expansion of the Athenian popular, by Cleisthenes, 147; payment for service in the Athenian, 155; increased, 156; Roman, 255-257; theFrench, 478; Prussian (Schwurge- richte) , 621.Jus civile, 261; affected by the jus gen- tium , 264, 271 , 272 , 274.Jusgentium , originates with the Prætor peregrinus, its character, 262; not in- ternational law, 263; influence of,upon the jus civile, 264, 271 , 272, 274;grows in the Provinces, 268; receivesdencies, 45; administration of, inAthens, 120 , 133 , 134, 147, 153-155;administration of, in Sparta, 108, 111 ,113; administration of rural, in medi- æval France, 358; centralization ofthe administration of, in France, 335-342, 380, 385, 468-475; administrationof, in Germany, 508, 555; in Prussia,563, 564, 618-629; in Switzerland, 677 ,683; in the cantonal courts, 703-711;in the Federal Court, 712-726; administrative cases, 727; in England, 919-934; in the states of the AmericanUnion, 1147-1172; under the federalgovernment ( U.S. ) , 1306-1322.Justice, Department of (U.S. ) , 1343.Justices of the Peace, French , 456, 472,473; English, criminal jurisdiction of,931 , 932; in Quarter and Petty Ses- sions , 933; character and repute, 934,950; history of office of, 946, 947; ad- ministrative functions of, before 1888,948 .Kalmar, union of Denmark, Swedenand Norway at, 786.King, the Homeric Greek, 44-47; his part in legislation, 44; in tribal jus- tice, 45; his priesthood , 46; character of his headship, 47; representative position of, 46; likeness of early Roman, to early Greek, and differ- ence, 160; method of electing early Roman, 160; Roman, gives place to consuls, 166; of Sweden-Norway, as king of Sweden, 796, 813, 814; as king of Norway, 798 , 799, 823; selection of,in case of vacancy, 801 , 802; as jointking of Sweden and Norway, 803–806;of England a sort of permanent minis- ter, 860; not a member of the Cabinet,861; and the appointment of ministers , 863, 866.Kings, the two Spartan, their origin ,107; their subordination to the Ephors,111; their judicial function , 113.King's Bench, English Court of, its ori- gin, 847; division of the High Court,920, 921.650 INDEX.-Kingship, abolition of the, in Athens,118; in Rome, 166; the new Teutonic ,301.Kinship, the first bond of society, 4, 17;persistence of the idea of, 23; ficti- tious, adoption , 24; and religion in primitive society , 25; survivals of theidea of, 29; dissociated from citizenship , 243.Labor, Department of (U.S. ) , 1351; thestate in relation to, 1506.Lagthing, the Norwegian, 825–827.Land, the primitive state related to noparticular, 10-12; manner in whichthe relationship to , was developed , 10:identification of the modern state withsome particular, 12; Roman Public,182; tenure of, in Sparta, 105 , 1497;in Athens, 1500; tenure of, among the Teutons, 287; modified by conquest,302, 303.Land Claims, U.S. Court of Private ,1313.Landammann, the Swiss, 650.Landeshauptmann (or Landesdirektor) ,Prussian, 594-597.Landesherren, 480.Landgemeinde, Prussian, 572.Landrath, the German sheriff, 561 , 565,570, 572, 607, 608, 627.legal systems, 325-350; see TopicalAnalysis; its typical character, 1431;spoke the will of the Roman commu- nity and the Roman character, 1441 .League , the Achæan, its history, 92; its constitution, 93, 94; the Ætolian, itscharacter and constitution , 95–97.Leagues, the Hanseatic and Rhenish,316.Legislation in the Homeric patriarchalpresidency, 44; in Athens , 131 , 132;in Sparta, 108, 109; in Rome, 160, 162,171 , 178 , 181; under the Empire, 219;growth of, in ancient city-states, 247;character of Roman imperial, 278;its codification, 279, 280; course of,in the French Chambers, 431-434; in Swiss cantons, 645-656; joint, in Aus- tria and Hungary, 749, 753; in Sweden and Norway, 808; in England, 871 ,916; distrust of, in American states,1097; course of, in American states ,1140-1142; course of in U.S. Congress, 1280-1283, 1293–1304; scope of modern, 1365; and administration under modern systems, 1384-1386; as a source of Law, 1427 , 1428.Legislatures , Swiss cantonal , 645-649;of the American states , 1128-1141; notsovereign bodies, 1132; development of, 1362-1365.Landsgemeinde, of the Swiss cantons, Legitimists, French, 394.646-648.Landtag, the Prussian, 580-586; the Prussian Provincial, 594–596; the Austrian Provincial , 764, 772; of Croatia- Slavonia, 783.Law, the making, execution , and interpretation of, 1366, 1367; its nature and development, see Topical Analysis.Law of the American states, its character, 1088, 1089; its scope, 1091 et seq.; its conflicts, 1108-1114.Lawgiver, theory of an original, as creator of the state, 15.Law, international, 1457, 1458.Law, ' personal, ' in Gaul, 295; in Italy,326.Law, political, limitations of, 1461 .Law, private, effect of Roman upon Teutonic, 297; content of, 1463, 1464.Law, public , effect of Roman upon Teutonic, 296; content of, 1462, 1464.Law, Roman, entrance of, into modernLex Visigothorum , the, 326.Liberties, their creation vs. their con- firmation by constitution , 1370, 1371.Liberty, development of constitutional,in the American colonies, 1056, 1058.Licinian laws (in Rome) , 192 .Limits, natural, to state action, 1529– 1532.Local government in France, 356-370,380, 381 , 383, 440 et seq.; in Prussia,560-566, 570-572 , 587 et seq.; - in Switz- erland, 659 et seq.; in Austria, 773;in Hungary, 782; in Sweden, 785, 821;in Norway, 829; in England, 938 et seq.; in the U.S. , 1184-1188, 1206 et seq.Local Government Board, The English,876 .Locke, John, Civil Government, 14;on the origin of the body politic , 14.London, the government of, 1004-1006.Lord Lieutenant, the English, 951.Lords, House of, the Prussian, 579–585;INDEX. 651the Austrian , 765-769; the English, its composition, 911-913; function of, inlegislation, 914; as a supreme court,915 , 923.Lot, election by, introduced in Athens,153.Louis IX. , translation of Roman Lawand judicial reforms under, 335, 380;centralization of local administrationby, 380, 381; Louis XIV. , personal government of, 382.Louisiana, peculiar character of thelaws of, 1115 .Lycurgus, part of, in the development of Spartan institutions , 117.Macedon, mastery of, in Greece, 87;conquests and influence of, in the East,88-90.McMahon, Marshal, 399.English, see Cabinet, The English; re- lations of American federal, to Congress, 1283, 1298; relation of, to head of the executive in modern governments, 1381 , 1382; relations of, to ad- ministration as a whole, 1383; relationsof, to modern legislatures , 1384-1386.Ministrant functions of government,1479, 1504-1512.Ministries, the French, 420 , 438; de- velopment of the Prussian, 566, 573;present Prussian, 573; Swiss federal,672-674; the common, of Austria andHungary, 749, 750; and the Delega- tions , 755; the Austrian, 762; the Swedish, 815; the Norwegian, 824;the English, 873 et seq.; under thefederal system of the U.S. , 1336-1351.Ministry of State (Staatsministerium) ,the Prussian, 576.Magistrate, the political, replaces the Monarchy, character of primitive Greek,hereditary, 41Magnates, House of, the Hungarian, 778.Majorities, election by, in France, 405;force of, in modern politics, 1413 .Mala Prohibita, 1452.Manors, Prussian , 572.Marius, 213 .Markgraf, the Frankish , 481.Marshal, the U.S. , 1317 , 1318.Massachusetts, charter of, 1050 .Mayor of the Palace, the Austrasian ,322.Mayor, of the French Communes, 457- 463.Mediterranean , the Greek, 68.Metaci, the Athenian, 157.44-48; the modern absolute, 1399, 1400;the modern, usually limited , ' 1401;not now succeeded by aristocracy,1402; the feudal , its character, 1491 .Monopolies, natural, 1524 , 1525.Moravia, 733.Morley, John, quoted as the origin of government, 20.Mosaic institutions, influence of, onEuropean development, 285.Municipal Council, the French, 461–464;the Prussian, 615, 616; the English,992; the American, 1252 , 1253.Municipalities, English, 989-1002.Museum , U.S. National, 1351.Middle Ages, government during the, Napoleon, codification of French lawsee Topical Analysis.Migration of communities, effect of, on customs and institutions , 36, 37.Military leadership among the Teutons,290.by, 337, 342; reconstruction of Frenchadministration by, 389, 390.National Assembly, the French, 410- 417.National Character spoken in Law, 1443 et seq.National Council, the Swiss , its composi- tion, 687-692; its functions, 696-698.National Idea, the, in U.S. growth of,1078 et seq.Ministerial System, the French, 377;at present, 419-430; the Prussian, 573 ,574, 576.Ministers, French Council of, 419, 422;relations of French, to legislature, 427-430; Prussian do . , 576; relations of Prussian to legislature , 580; the Swiss ,664, 672-674; their relations to the , Nature, Law of, received by Romanfederal legislature, 670; the Austrian ,762; the Hungarian, 775; the Swedish,814; the Norwegian, 823, 824; theNationality among the Greeks, 74; and state sovereignty in Switzerland, 638.lawyers from the Greek Stoics , 269,270; laws of, and laws of the state,1460, 1461 .4352 INDEX.Nature and forms of government, see Topical Analysis.Navy, Department of the (U.S.) , 1342.New Mexico, law of, 1115.Northmen, The, 784.Norway, see Topical Analysis, Sweden- Norway.d'États,French, selfgovernment in,368-370.Peloponnesian War, The,significance of,in Greek politics , 85.Pericles ,influence and constitutionalreforms of, in Athens, 154 , 155.Periæci, the Spartan,different from Athenian Metoci, 104.Objects of government , the, see Topical Permanent Council, The, in England,Analysis.Octavian, see Augustus .Odelsthing, the Norwegian , 825–827 .Oligarchy, the Roman, 207.Opinion, effects of, upon character of the government of the U.S., 1075 et seq.844;846.its composition , 845; its powers ,Persia, wars between Athens and, theireffects upon the Athenian constituPetition,imperative , in the Swiss can- tion, 152.Opinion , public, ancient compared with Phoenicians tons, 654. ,influence of, upon the modern, 1391 .Organization of government (administrative) , existing parallels and con- trasts in , 1380 et seq.Greeks, 66.Phratries, unions of houses, ' 50; unitsof worship and of military organizaOrigin of government,probable, see Pisistratus tion, 51; ,new supremacy , of Cleisthenes of , 145., and relations Topical Analysis.Orléanists , French, 394.Ostmark, the (Austria) , 481 , 482.Ostracism,instituted in Athens by Cleisthenes , its nature and operation,148.Parish, the English, its history , 975; the Poor-law, 976;administrative , since1894, 977-985; powers of, 982;supervi- sion of, 983; urban , 984.Parliament, the English, its early evolution , 848-851; genesis ofthe two housesof, 852 , 853; and the ministers, 858 , 859,868, 869, 871; see House of Commons and House of Lords.to the Solonian constitution , 138-140.Plebeians, the Roman, who were they?176; first secession of, 177; second secession of, 185; granted Tribunes,178-180;admitted to share in the legislative function , 181; and publication of the law, 183-186, 253;admittedPolemarchus, the archon, 120; a typical to the magistracies, 190-193.officer, 159.Police, The, in England, 936;powers ofPontiffs,expansion of law by Roman, England county councils, 974.Post-office, the English, 878; the Ameri- 254; Roman prætors vs. , 259.can, 1344.Parliament of Paris, 335 , 341 , 379, Post and telegraphs,administration of,382.Parliamentary Reform in England, 894- 900.in German Empire, 551; in the U.S.,1117, 1118.Prætor, office of, created , 192; the, urbanus as judge, 257; as interpreter of law, 258, 260; vs. Pontiff, 259; edictof, 260; the,peregrinus, 261 , 266; func- tions of, 261;originates jus gentium ,262;completion of power of, 265;Prefect, the French,442-445; control provincial governors as prætors , 268.of, over local authorities, 454 , 455, 461–467; and the Prefectural Council, 469.Presidency, the patriarchal Greek, 44,46, 47; creation of, 242.Parliamentary Responsibility in France,427; in Germany, 533-536; in Switzerland, 670; in Austria-Hungary, 755;in Austria, 762; in Hungary, 775–777;in Sweden, 814; in Norway, 823; in England, history of, 858, 859; at present, 868, 869; under the various modern systems of government,1384-1386 .Parties in French Assembly of 1871-1876,395; in German Reichstag, 529.Patronage of office in France, 425, 446.Pays de coutume, and de droit écrit, 327; |President, The, of France , 415-418; rela-INDEX. 653tions of, to the body of ministers , 423- 426.President, The, of the U.S. , 1323; constitutional plan of his election , 1324;actual plan, 1326; qualifications, 1327;salary, 1328; duties and powers , 1329;his appointing power, 1330-1332; suc- cession to office of, 1333; relation of,to Congress, 1334 , 1335; his message,1335 .many, 546; effects of, in U.S. in aid- ing the national idea, 1080.Referendum, the, in the Swiss cantons,656; its history, 657; operation of, 658;the Swiss federal , 699, 700; practiceof the Swiss , in U.S. 1097, 1099, 1100.Reform , period of constitutional, inGermany, 490.Reichsgericht, the German, 555 , 618 .Reichsrath, the Austrian, 765–770.President, The ' Superior ' of the Prus- Reichstag, the German, its character sian Province, 589–593.Prévot, office of, in mediæval French towns, 360; under Louis IX. , 380, 381.Priesthood of heads of family and state in primitive society, 46, 53-55.Primogeniture, its connections with religion in primitive society, 55.Printing office, U.S. federal, 1351 .Privy Council, the English, its deriva- tion from the Permanent Council, 854;its assumption of judicial powers, 855;administrative departments of the,883; the judicial committee of, 924.Property, given representation by Solon,128, 129; personal, made basis of fran- chise in Athens after Persian wars, 152;guardianship of, bythe statein Sparta,105, 1497-1499; given respresentation in comitia centuriata by Servius , 162,163; relation of the state to, 1496 et seq.Proprietary colonial governments, 1053.Provinces, administration of Roman,under the Republic , 199-202; underthe Empire, 223-225, 230 , 233-236;administration of justice in Roman ,268; mediæval self- government of theFrench, see Pays d'États; the French,military, not civil, districts, 384; give place to modern Departments, 390;the Prussian , administration of, 589-597; government of the Austrian , 772,773.Provinzialrath, the Prussian , 594-597.Prussia, the rival of Austria, 485; development of, from the Mark Brandenburg, 485 , 486; history of local government in, 559, 560, 570–572.Quæstor, office of, created in Rome, 191.Race, variety of, in Austria-Hungary,739.Railways, administration of, in Gerand competence, 516; its composition ,517-521; sessions of, 524; organizationof, 526; election of officers in, 527.Religion , its connection with kinship in primitive society, 24, 25; connectionswith precedent , 26; the priesthood ofancient family and communal heads,53; private gods and the representa- tive character of the priesthood, 54;its connections with primogeniture,55; of the city, 56; and tribal organization (temp. Cleisthenes) , 145; com- munity of, among the Greeks , 75-77;politics separated from, 246; Romanlay, 251; as a source of Law, 1419,1420.Representation, introduction of theprinciple of, into politics, 1361; its operation, 1362, 1363.Representative , power of a, 1364.Representatives , in American state legis- latures, their terms, 1137 , and qualifications, 1139; apportionment of, in Federal House of Representatives,1286-1288.Representatives , House of, Prussian,582-586; Austrian , 765; Hungarian,778-781.Representatives, House of, U.S. , 1285 et seq.; apportionment of representa- tives, 1286; elections to , 1289, 1291,1292; its organization , 1293–1298;must originate bills raising revenue,1304.Republic, establishment of the Roman,166; effects of conquests upon theRoman, 203; its breakdown, 206–208;provincial administration under, 199-202; causes of failure of, 203, 210-213;economic decay, 211; the thirdFrench, proclaimed, 393.Responsibility, ministerial, see Parliamentary Responsibility.654 INDEX.Revenue, sources of, in German Empire,554; the common, in Austria- Hungary,752 .Revision, the Court of, French admin- istrative, 469.Revolution , the French, governmental effects of, 388, 389.Rhode Island, charter of, 1052.Rights, private, Roman conception of,1484, 1485 et seq.; the state and politi- cal, 1503.Riksdag, the unreformed Swedish, rep- resentation and separate action of the four orders in, 788; the present, 816- 820.Roman Law, see Law, Roman.Romans, The, and the English compared,1357-1359; contrasted , 1360, 1361.Rome, government of, see Topical Anal- ysis; tenure of property in, 1501.Rotation in office , 1181.Rousseau, J. J. , The Social Contract, 14. |Russia, power of the Czar of, 1439, 1447 .Sanitary districts, Rural, in England,985; Urban, in England, 1001 , 1002.Sanitation, a function of the state, 1510,Savigny, on the stages of legal develop- ment, 1434.Schöffengerichte, the Prussian, 621 .School Districts, English, 1007.Schools, influence of, on study of Romanlaw, 330; administration of, in Eng- land, 1007 , 1008; in U.S. , 1254-1257.Schulze, the, 571 , 572.composition under the Republic, 171,172; censors revise roll of, 194; centreof oligarchic power, 207, 208; reformof, by Angustus, 215; certain prov- inces left to, under Augustus, 216;relations of Augustus to, 216; position and powers of, under the Empire,216, 218-221 , 231 , 278; provincials gainadmission to, 224; powers of, all- inclu- sive, 1487.Senate, The, of the U.S. , its characterand composition , 1274-1278; its pre- siding officers , 1279, 1284; its organi- zation, 1280-1282; its dealings with the Executive, 1283; its part in appointments to office, 1329-1331.Senators , American state, their terms,1137; and qualifications , 1139.Servius, reforms of, 162.Session, limitation of length of, in American states, 1129, 1131.Sheriff, the English, 942-945, 951; of colonial Massachusetts , 1040; of colo- nial Virginia, 1046; in the American states, his election and relation to the courts, 1172; contrasted with U.S. marshal, 1173.Slavery in the way of nationality in the U.S., 1081.Slaves, the Athenian, 158; the Spartan,103; Roman, displace free yeomen, 212.Slavonia, 735.Smithsonian Institution, 1351.Socialism and the modern industrialorganization, 1520.Scotland, the administration of, 887; Society an organism, government anlocal government in, 1010.Secession, early tolerance for threats of,from the Union, 1077.organ, 1393, 1518, 1522, 1528; new character of political, 1414; objectsof, 1522.Secretary of State, the, in an American Solon, position of, in Athenian tradistate, 1195-1201 , 1204.Self-government, local, in France, in Middle Ages, 356–370.Semitic Races, their comparative insig- nificance in this study, 3.Senate, the Athenian probouleutic, of Four Hundred instituted by Solon ,131; of the Areopagus, 134.Senate, the French, composition , etc. ,of, 406; influence of President and,418; as a court of justice, 472.Senate, the Roman, constitution of,under the kings, and change effected by Servius, 162; its character andtion, 15; political changes precedinghis appearance in Athenian politics,118-120; made archon eponymus at acrisis , 121; his economic reforms, 127-129; his political reforms, 130-135;relations of Pisistratus to reforms of,139; new principles introduced by, in Athenian constitution , 135; fate of institutions of, 136, 137.Sonderbund, The, 635.Sovereignty, the feudal conception of,313; state, in Switzerland, 639; natureof, 1445 et seq.; the analytical account of, 1469, 1470.INDEX. 655Sparta, see Topical Analysis; property system in, 105, 1497-1499.Spartans, their conquest of the valley of the Eurotas, 102; relations to thesubjected population of Laconia, 102;relations to the state and to eachother, 105; and the state discipline,114, 115.Speaker, the, of the American House of Representatives , his powers , 1293;his election , 1294; his name, 1295.State, The, its origin in kinship and thefamily, 4; development out of thepatriarchal family, 8; primitive , dis- connected with a particular territory ,10; modern, identified with land , 12;contract theory as to origin of, 14;traditions of an original lawgiver ascreator of, 15; theory of the divine origin of, 16; criticism of theories asto origin of, 17-19; emergence of, from the family stage, 58; guardianship ofproperty by, in Sparta, 105, 1497-1499;Roman allegiance to, 292.State, Department of ( U.S. ) , 1338 .States, The, of the Union, constituent members, not administrative divi- sions, 1086; their character, organs,and functions , see Topical Analysis.States-General, the French, originationof, 374; character and powers of,375.Status, the law of, in primitive society,13, 19, 28.tents of, 188; expanded by interpretation, 254; applied by the Prætor, 258.Taxation, variety of laws touching, in U.S., 1111; local and state , in U.S. ,1257 , 1258.Telegraphs , see Posts and Telegraphs.Territorial sovereignty, development of, in Germany, 477, 480.Territories , The, of the U.S. , 1270; courts of the, 1319, 1320.Territory, the federal, in U.S. , 1265 et seq.Teutonic Customs, Ancient, their evidence as to social organization , 6; in- stitutions in Sweden and Norway, 785;origin of the English constitution 832-835; Law spoke national character,1444.Teutons, and Roman legal institutions ,284; contact of, with Rome, 286;primitive institutions of the, 287–293;communal government among, 287;free, unfree, and noble amongthe, 288;inter-communalgovernment, 289; military leadership, the comitatus, 290;principle of personal allegiance among the , 290, 292 , 293, 301; customs of,affected by Roman law, 294–297; in- stitutions of, in Sweden and Norway,785; the, in England, 833-835.Theatre, largess to enable the commons to attend the, in Athens, 155; in- creased, 156.Thebes, brief supremacy of, 86.Stein, Baran vom, reforms of, 568, 574, Thesmothetæ, the, their judicial func- 588, 590, 614, 627.Storthing, the Norwegian, 825-828.Strategoi (generals) , ten, created in Athens by Cleisthenes, 149; their rela- tions to the archon polemarchus and to each other in the field, 149; typicalofficers, 159.Suffrage , see Franchise.Sulla, 213.Sumptuary Laws, 1512.Superintendent of Education , The, in an American state, 1205.Sweden, see Topical Analysis , Sweden- Norway.Switzerland, emergence of, from Germany, 484; see Topical Analysis.Syssitia, the Spartan, 114, 159.Tables, the XII . , prepared , 187, 253; contions, 120.Town-meeting, American, 1214, 1218 etseq., passim.Towns, Roman law in the , of the MiddleAges, 282; of Middle Ages perpetuate and transmit Roman principles, 298;feudalism and the , 314; guilds in the mediæval, 315; leagues of the Hanse and Rhenish, 316; liberties of, inmediæval France, 359; non-Roman mediæval, French, 360-362; medievaland the Crusades, 363; privileges of,in mediæval France, 364 , 365; andforms of government, 366; decay of independence of, in France, 367; subjection of, to the king in France, 373;the New England, their separate foundation at first, 1037 , their union,1038, their forms of government, 1039 ,656 INDEX.Roman law in the Middle Ages, 328.Usurpation, provision against, in France,409.Township, the American , its historical | Universities, created by study of the origin, 1214; absorbed into largerunits of government, 1216; partial decay of, 1217; its organization inNew England, 1218-1221; of the Northwest, 1222-1224; its origin there, 1225;its spread in U.S. , 1226, 1227; its organization outside of New England,1228-1233; of the Middle AtlanticStates, 1235, 1238; of New York, 1236;of Pennsylvania, 1237; in the South,1238; in Virginia, 1238.Trade, the state in relation to, 1505.Transylvania, 735.Treasurer, the, of an American state,1203, 1204.Treasury Department, the English, 879- 882; of the U.S., 1339.Veto, the popular, in Swiss cantons ,653; of the governors of the Americanstates , 1189 , 1194; of the President of the U.S., 1299, 1300.Vice- Chancellor, the German Imperial ,542.Vice-President of the U.S., 1279, 1323,1326.Villages, government of American, 1246 et seq.Virginia, colonial, government of, 1046,1047.'Tribe, ' the, 8; a union of phratries, 50; | War, Department of ( U.S.) , 1341 .a unit of worship, 51 .Tribes, new Athenian, created by Cleis- thenes, 144; religion and the tribalorganization, 146.Tribunes of the people, 178-180; military, 191.Triumvirates, second and third, 215.Trojan war, significance of, 31 , 67,78.Turanian Races, their comparative insignificance in this study, 3.Union, preliminary steps towards the American, 1065; the Confederation,1067-1069; need for a better, 1070;character of the present, 1074-1086;early sentiments towards, 1076; early tolerance for threats of secessionfrom, 1077; completed by Civil War,1082.United States, government of the, seeTopical Analysis.War, effects of, on Roman constitution,189; the Civil, in U.S. , completes the Union, 1082.War and Domains Chambers , in Prussia,562 et seq. , 601; fusion of the adminis- tration of Warand of Domains in Prussia, 567; Commissariats , Prussian, 565.War, the Sonderbund, 635.Witenagemot, the English, its origin ,837; its powers, 838; merged into the Great Council of the Norman kings,840.Women, vote in English local government, 987; suffrage of, in U.S., 1145.Works, public, and the state, 1508.Württemberg, relations of, to other German states, 487 , 491 , 493 , 496; independence of, in administration ofposts and telegraphs, 552; in military administration, 554.Zollverein, The, 490.ADVERTIsem*nTS

HISTORY.For description of forthcoming books in History, see announcements at end ofthis catalogue.Methods of Teaching and Studying History.Second edition. Entirely recast and rewritten . Edited by G. STANLEY HALL,President of Clark University, Worcester Mass. Cloth. 406 pages . Retail price, $1.50.THISHIS volume contains, in the form most likely to be of direct practical utility to teachers, as well as to students and readers ofhistory, the opinions and modes of instruction, actual or ideal, ofeminent and representative specialists in each department. Abouthalf the material of the first edition has been eliminated fromthis second edition, and new matter substituted to an extent whichsomewhat enlarges the volume, and of a kind which so increases itsvalue and utility that readers of the old edition will find this essentiallya new work.Alice E. Freeman, the recent Pres. | PaulFredericq, Professeurà l'Uniof Wellesley Coll., Mass.: It is an admir- versité de Gand, Ghent, Belgium: Veuil- able book in every way. What these mensay in regard to their methods of work ismost wise, as I know by experience as astudent and as a teacher.George Lilley, lately ofDakota Agricultural Coll., Brookings: I wish to recommend the work to our class of normal teachers connected with the college.lez remercier de ma part celui ou ceux desauteurs qui ont bien voulu me faire envoyer cet intéressant ouvrage. Agréezmes salutations distinguées .The Nation: The general excellenceand helpfulness of the book before us ought to secure it many readers. We canheartily recommend it, as well to teacherswho are conscious of deficiencies in theirpreparation , as to principals and school boards who wish for assistance in layingout courses of study. It contains few de tails of fact, but an excellent summary andS. J. Sornberger, Teacher of History, State Normal and Training School,Cortland, N. Y.: I amvery much pleasedwith the book. It gives to the teacher an outlook into the field of history which without it would never have been realized. | analysis of principles.104106 HISTORY.Studies in General History.Ν(1000 B.C. to 1880 A D. ) An application of the Laboratory Method to the teach ing of History. By MARY D. SHELDON, formerly Professor of History in Wellesley College. Half leather. 572 pages. Price by mail, $1 75. Introduction price, $1.60.IN the sciences no instruction is now considered sound which does not bring the pupil into contact with actual realities, and teachhim how to handle and interpret them; in history, however, teachingis still too much based on the reading of manuals, which scarcely callfor any power save that of memory.This new text-book gives a collection of historic material, whichmay be dealt with first-hand, as the pupil deals with the actual substance in Chemistry, and with the living plant in Botany, thus stimulating his historic sense and judgment. It is especially adapted tohelp students and teachers without access to large libraries, and contains within itself all that is absolutely necessary for the workrequired; but when books are accessible, it serves as a guide to stillwider " Studies " which can be extended according to the resources athand. The material given consists of maps, pictures , lists of importantevents, men, works, and deeds, tables of political organizations, andextracts from original sources, including constitutions, creeds, laws,chronicles and poems. It is accompanied by questions which are ofthe nature of problems, the answers to which must be worked out bythe pupil himself from the given data. It is a book to be studied, not read.Sheldon's General History was introduced into nearly one hundredschools and colleges during the first year of its publication. Seespecial circularfor the opinions of teachers as to its merits. Thefollowing are afew extracts:J. R. Seeley, Regius Prof. ofHist.,Cambridge Univ. , England: I think you,and those teachers who use your book, will get from it the much higher delight of feeling that you have given your pupils areal guide, a new science.Alexander Johnston, late Prof.ofJurisprudence and Political Economy,Princeton Coll. , N.J.: Give a boy acompetent instructor and this text-book,and if he does not get more than dry bones out of history, it will be because he is not fitted for such food. The book isa long step in advance.C. J. Little, late Prof. of History,Syracuse Univ.: This is a book "aftermy own heart." Its wide-spread intro- duction into American schools will begin a new epoch in the study of history.HISTORY. 107Teachers' Manual to General History.By MARY D. College. Cloth.THESHELDON, formerly Professor of History in Wellesley 172 pages. Retail price, 85 cents.HE student's edition of the " Studies " contains the material andthe problems for independent study; the Teacher's Manual contains the answers to these problems, embodied in tabulations, and arunning commentary of text, which will furnish suggestions for thediscussions and the summaries demanded by the class- room; to theseare added topics for examination and essay work, to meet cases whenexercises of an advanced character are desirable.The Critic, New York: The pre- 1face is in itself an earnest that the book will be what we indeed find it to be: an original, concise, and suggestive manual for teachers given to that best method of teaching which consists, not in telling pupils facts, but in eliciting facts and thoughts from the pupils.Wisconsin Jour. of Ed.: Withthe accompanying manual, now accessibleto teachers, the work is not so difficult asmight be supposed, and its fruits are very satisfactory.N. Y. School Journal: Teacherswho thoroughly understand and faithfullyfollow this book, will produce far betterresults than is possible under the tread- mill method of olden times.S. W. Jour. of Ed.: We commendit highly. It is of great value to theteacher who teaches by topics , and per- mits the pupils to use a variety of books.The competent teacher who uses thisbook, understands the spirit of its sugges- tions, and follows its directions intelligently, cannot fail to impart to his pupilsmuch valuable information, inspire them to diligent research, and draw from themintelligent recitations.Schoolmaster, London: The summaries are ably drawn up, while the general remarks on leading epochs and nationalcharacteristics are interesting, and showmuch power of taking a broad and com- prehensive view of historical details.Aids to the Teaching of General History.A Pamphlet of 22 pages, by MARY D. SHELDON, author of " Studies in General History." Price, 10 cents. Also bound with the " Teachers' Manual."GEENERAL advice to teachers on helps to successful teaching ofHistory, together with a useful bibliography of general Historyand a list of questions on Greek and Roman History.Education, Boston: Teachers , inboth grammar and high schools, will findmuch valuable information and many excellent suggestions in this pamphlet.School Teacher, N. Y.: Noteacherof the very important subject, History,should be without this little volume. Itis full of suggestions.108 HISTORY.Greek and Roman History.Or, Studies in General History, from 1000 B.C. to 476 A.D. By MARY D. SHELDON, formerly Professor of History in Wellesley College. Cloth. 266 pages. Price by mail, $1.10. Introduction price, $1.00.T the request of several teachers in leading city high schools, weA have bound separately that portion of Sheldon's studiesweGeneral History " which relates to Greece and Rome, including thesmall amount of prefatory Ancient History. This portion will meetthe needs of students preparing for college, of schools in which Ancient History takes the place of General History, and of students whohave used an ordinary manual and wish to make a spirited and help- ful review.Isaac B. Burgess, Classical Master, |Morgan Park Acad.: It marks as dis- tinct a revolution in the method of pre- senting history to the learner as "Warren Colburn's First Lessons " did in the case of arithmetic and in much the same direc- tion. The peculiar excellences of thebook are a remarkably clear, concise, andstriking arrangement of essential facts anda plan of study that requires honest,orderly thought.F. W. Tilton, late Principal RogersHigh School, Newport: It has been used in the Rogers High School several years and we have found it an extremely val- uable book.John F. Kent, Prin. of ConcordHigh School, N. H.: I am very glad to testify to the great success with which ithas been used for the past two years in our school.Miss Sarah P. Eastman, Dana Hall, Wellesley, Mass.: We use it andthink it by far the best book, for certain classes, which we have ever seen.Saturday Review, London: Inthis book the student is set to think forhimself, and to form his own conception of the figures that by some caprice of fate loom out through the mist that shroudstheir contemporaries. By this meansevery man becomes his own historian,and sees past events in the light of hisown judgment, instead of reflected in themirror of another's mind. There can be no doubt that this is the only rational wayof teaching history.The Tablet, London: We are muchtaken with it and recommend it very highly. Both professors and scholars will besaved much trouble by using it. Thebook needs only to be known.The Nation: It needs no furthercommendation to any person who is familiar with the remarkable merits of theparent work. We will only add one thing:that this method, like every method oforiginal and independent excellence, calls for teachers of skill and thoughtfulness.A. R. Curtis, recently of Girls' N. E. Jour. of Ed. It must be aLatin School, Boston; I have used the luxury to study or teach Greek or Romanchapters on Greece and Rome only in re- history with such an admirably classifiedview lessons, since it is not one of the au- work, full of aids from first to last for thorized books. But I like these chap- appreciating and memorizing all that isters very much and I should be glad to of interest and importance in this history.have the book added to the authorized The preface is a valuable contribution in list. itself.HISTORY.Sheldon's Studies in American History.109For use in Grammar Schools . By MARY SHELDON BARNES, Assist . Professor in Historyin Leland Stanford Jr. Univ. , and author of Studies in General History,and EARL BARNES, Professor of Pedagogy in Leland Stanford Jr. University.Half leather. 442 pages. Introduction price, $1.12. Price by mail, $1.25.'HE aims of this new book are: ( 1 ) To teach the pupil to deal with Esions ofthis erfall at arst hand, totrain him to see the factandcatch the spirit of what he reads; to judge of the character and influenceof men and acts; and, to some extent, to see the relations of causeand effect in historic events. (2) To give hima sympathetic appreciation of the development of our American life and character. (3 ) Togive him a clear idea of the facts of our history in their relations oftime and place.Its methods are: To present the fact and spirit as often as possiblein its original form. Its contents are, therefore, largely taken fromcontemporaryletters, diaries, and books, of each period under consideration, while such connections are made as are necessary to giveunity to the whole. Thought and attention are aroused by directivequestions, while frequent exercises in map- drawing and chart makingfix the whole history in time and place. The great stress is laid uponthe settlement and development of our land and people, the GreatW'est not beingforgotten. The materials are thus largely descriptiveand biographical . Reading lists accompany each period , referring thepupil to the best stories, poems, and historical narratives that havebeen inspired by that period.The Teachers' Manual ( retail price, 60 cents) furnishes a key tothe book, by giving suggestions for the discussions and the summariesdemanded by the class-room, and references to the best authorities.[Sendfor special circular.Geo. E. Howard, Prof. of Ameri- trations been used with so much effect.can History, Leland Stanford Jr. Uni- They are all from originals, and they versity, Cal.: I regard this as by far the constitute the very best of contemporary most successful book for the High School evidence.which has yet appeared. Its plan is high- ly original; and it has been carried out with great thoroughness and good judg- ment. The work represents an immense amount of genuine research; and never,perhaps, except in Gardiner's Students'History of England, have pictorial illusHist., Yale Univ.: It is a very goodbook A. M. Wheeler, Durfee Prof. ofof its kind, and its kind is unusually good.C. H. Smith, Larned Professor of Am. History, Yale Univ.: It strikes me as likely to be an extremely useful book.110 HISTORY.Studies in Historical Method.BY MARY SHELDON BARNES, author of " Studies in General History " and "Studies in American History." Cloth. 160 pages. Retail price, 90 cents.N this book the subject of method is approached by a more inductive method than has ever before been used. In the first part thesubject is considered from the point of view of the nature of history,in the second part from the nature of the historical sense , and in thethird from the point of view of historical aim. The second part ismost purely inductive, containing two original studies on the historical sense in children and among primitive peoples. The first partcontains many bibliographical aids for the study of history, and at theclose of the book is given a complete bibliography of English titles onthe subject of method . The book is particularly intended to helpteachers to become intelligent students of history, or intelligent students of their pupils on the historical side. In this latter part of thework it is closely connected with the recent studies on children madeby Mr. Earl Barnes of Stanford University. This part of the book,together with the bibliographical aids , make it an original contributionto the subject of method.The Descent of England's Sovereigns.INBY FRANKLIN PERRIN. Chart, 10 x 12 inches. Introduction price, 5 cents each. Per hundred, $4.00 .N the form of a chart so small that it can, with one folding, be putinto any book of history, the descent of England's Sovereigns isshown at a glance.Prof. Albert Bushnell Hart ofHarvard University writes: I thinkthis chart is exceptionally simple, clear,and helpful to the memory. I shouldexpect such a chart to aid teachers andpupils.have never seen a chart whichbrought out so clearly the relations between the various royal houses of Great Britain. It has the further merit of notbeing overloaded with detail.Ray Greene Huling, Head Masterof the Cambridge English High School:A chart of this kind often seen by thepupils while studying English History,would give clear impressions where notinfrequently confusion reigns. The grouping into dynasties enforces another seriesof facts with definiteness.W. F. Bradbury, Principal of the Cambridge Latin School, says: I musthave that chart for my class in history.HISTORY. IIIA History of the United States.For Schools, Academies, and the general Reader. By ALLEN C. THOMAS,Professor of History in Haverford College, Pa. Cloth . Illustrated. 542 pages.Introduction price, $ 1.00 . By mail, $1.10 .HE aim of this work is to give the main facts ofthe History oftheUnited States in aclear and simple style. The book is essentiallya history of the country under the Constitution , for while the period ofDiscovery and Colonization is described with sufficient fulness to showclearly the origins of the people and of their institutions , only aboutone-third of the book is given to colonial times .In the treatment of wars more attention is given to why men foughtthan how they fought, details of battles being avoided; at the sametime the importance of war-periods has not been underestimated, butthey are treated with particular reference to their effect upon the country.Throughout the book especial attention is given to the Political, Social,and Economic development of the people. The effect of Inventions,the Growth of the National idea, Reforms, the New South, and Immigration, are dwelt upon. Great care has been taken to secure accuracy of statement, and original documents are not infrequentlyquoted.The text is divided into sections of moderate length , with topicalheadings in bold-faced type but wholly separate from the text. Τοevery section (except in the very few cases where the subject does notcall for it) is prefixed the year or years during which the events described took place; it is believed that this feature will be found veryuseful . Cross references have been inserted wherever it seemed advisable.The illustrations are not imaginative , but realistic, and the numerousportraits are from authentic sources . The Maps are intended to illustrate the text, and more particularly to indicate territorial changes andgrowth. With two exceptions they have been designed especially forthis work. At the head of each chapter is placed a list of References,many of which are to volume and page; these will be found helpful toteacher and pupil. In addition to these a list of books, illustrative readings , and of authorities , is given at the end of the volume. Full Appen.dices contain original documents, tables of growth of population , etc.The narrative is brought down to the close of 1896.Full descriptive circular sent on application.118 POLITICAL SCIENCE.Principles of Political Economy.ABy CHARLES GIDE, Professor of Political Economy in the University of Montpelier, France. Translated by E. P. JACOBSEN, formerly of University College, London. With an Introduction and Notes by JAMES BONAR, LL. D.,of London. American Introduction by J. B. CLARK, Professor of Political Economy, Smith College, Northampton, Mass . Cloth, 598 pages. Retail price,$2.00. Special price for class use.MERICAN and English readers will welcome the translation ofProfessor Gide's book. It is neither a primer for beginners, nora dissertation for the learned, but a guide-book for serious studentswho have mastered the economical alphabet, and are feeling their wayto a judgment of their own on economical subjects . Its place inFrench economic literature is almost unique. It is helping many ayoung man to turn his attention to economic theory, and to study itin the light ofthe most recent discussions . Professor Gide has AdamSmith's faculty of making his readers think for themselves, and acceptno conclusion without following out the process that leads to it. Helays a just emphasis on the need of impartiality and freedom frompreconceptions. In a book written for real students of a subject, thetruth should be told without reserve or fear of consequences.John B. Clark, Prof. ofPol. Econ . , | best single text-book for advanced classes Columbia Univ. , N. Y.: The book is all in Political Economy that I have yet seenthat the circular claims. I hope to hearthat it is having the circulation it so amply merits.W. J. Ashley, ofHarvard Univer- sity. It has the merit of not con- cealing from the student the fact thatupon many fundamental questions of the ory and several important questions ofpractice there is still great divergence of opinion even among competent economists. Even where the author feels itnecessary to give the weight of his judg- ment upon one side, he never fails to ex- pound the other side with care and sympathy. And it is an interesting book; one which combines seriousness of purposewith lightness of touch; and which treats students as men and not as school boys.E. A. Ross, Prof. of Economics, Leland Stanford Jr. University: I am pre- pared to pronounce it beyond a doubt thein English. While one may not agree with Prof. Gide's conclusions, one must recognize that he is eminently fair towardall schools of thought. He never passes apoint where the ways of economic think- ing diverge without showing the otherpath and telling why some thinkers choose to pursue it. I think he can in ashort chapter turn to view more facts of an economic institution (like credit, in- equality of wealth or distributive justice)than any living economist.James Munroe, Prof. of Political Science and Modern History in OberlinCollege, Ohio: The work impresses me very favorably. I find in it so much in- telligence, candor, moderation, originalityin treatment, illustration , fairness and love of truth, that I am convinced it must takea high place in the public and esteem. Iwish for it a large success.HISTORY. 119at The Constitution the United States the End ofthe First Century. By GEORGE S. BOUTWELL, Ex- Governor of Massachusetts,Ex-Senator, and recently Commissioner to codify and edit the Statutes of theUnited States. 430 pages. 8vo. Buckram. Price, $2.50 . Full Law Sheep, $3.50.R. BOUTWELL, in addition to his long and varied experience MR. BOUTWairs,, in addie and national, was the comxperiencefor the revision of the statutes of the United States, and the volumeprepared by him and printed under his supervision in 1877 and 1878 isthe basis of the statute laws of the country at the present time .This volume will contain the Organic Laws of the United States; viz . ,The Declaration of Independence, The Articles of Confederation, TheOrdinance for the government of the territory northwest of the RiverOhio, The Constitution and the Articles of Amendment. Undereach of the Organic Laws and under the several paragraphs of theConstitution the decisions of the Supreme Court which elucidatethe text are cited by name and by reference to the volume in whichthe cases are reported at length.Then follow a historical chapter in review of the steps which led tothe Declaration of Independence, a chapter on the Articles of Confederation, a chapter on the Ordinance, for the government of theterritory north-west of the River Ohio, and then a short chapter onthe Preamble to the Constitution.The larger part of the original text of the work is embraced in ananalysis of the leading opinions of the Supreme Court by which theseveral articles , sections , and clauses of the Constitution have beeninterpreted, explained, and enforced .It has been the purpose of the author to present the Constitution asit has been interpreted and rendered by the Court, and in a mannerso concise that a knowledge thereof may be attained by students andby the members of the legal profession without extensive and laboriousresearch.Wm. A. Richardson, late ChiefJustice of the Court of Claims: I doubtif there be another person so well fittedfor the work. The ground has never be- fore been exactly covered.C. H. Adams, Pres. University of Wisconsin , Madison, Wis.: The schemeof Boutwell's book is admirable, and thework is accomplished in a manner worthy of its design.120 LAW.The Principles of International Law.By THOMAS J. LAWRENCE, Associate of the Institute of International Law;Lecturer in Maritime Law at the Royal Naval College, Greenwich; lately Pro- fessor in the University of Chicago, U.S.A.; sometime Deputy Professor of International Law in the University of Cambridge, England. 666 pages.Octavo. Buckram. Introduction price, $3.00. By mail, $3.20.THISHIS book is the work of a profound scholar and great master ofanalysis , is timely and authoritative, and embodies the latestresults of discussion and research. It traces the development ofInternational Law in such a way as to show its relation on the onehand to a few great ethical principles, and on the other its dependenceon the hard facts of history. Its accuracy makes it an authority forthe student and the lawyer; while its graceful and intellectual styleadapts it to the needs of the general reader.The book is divided into four parts . The first deals with the Natureand History of International Law, and the others set forth the Law ofPeace, the Law of War, and the Law of Neutrality. The author hasnot relegated important matters to notes, but has preferred the laborious task of extracting the substance from the statements of otherauthors and from original authorities and putting it into his own wordsin the body of the book, which has thus gained in decrease of bulkand increase of readableness. Care has been taken to provide themeans of checking the assertions of the text. At the bottom of nearlyevery page are references for the use of teachers , students , and men ofaffairs who may want more detailed information for practical purposes.Throughout the work the examples and illustrations are takenlargely from British and American history. The table of contents isso arranged as to make it an analysis of the subject-matter, and thereis an index of cases in addition to the general index .Hon. E. J. Phelps, Kent Prof. of Law, Yale Univ.: It is a terse, scholarly,and orderly presentation of the principles of the law of nations.rope and the United States in America.Every chapter is rich, not only in infor.mation, but in suggestion as well. Itdeserves the warmest praise.J. H. Beale, Jr., Asst Prof. ofLaw, University of Virginia: Lawrence's In- James H. Gilmore, Prof. ofLaw,Harvard Univ.: It is a useful and decidedly original book.E. W. Huffcutt, Prof. of Law,Cornell Univ., Ithaca, N.Y.: Especially valuable is the view of the actual stateof international relations as establishedby the primacy of the six powers in Euternational Law is especially valuable inthat it brings that branch up to thepresent time. It also discusses with greatability new questions of importance upon which some action must soon be taken.It is a valuable contribution to the authorities on international law.

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THE STATEELEMENTS OF HISTORICAL ANDPRACTICAL POLITICSBYWOODROW WILSON, PH.D. , LL.D.PROFESSOR OF JURISPRUDENCE AND POLITICSIN PRINCETON UNIVERSITYREVISED EDITIONBOSTON, U.S.A.D. C. HEATH & CO. , PUBLISHERS1898594508COPYRIGHT, 1898,BY WOODROW WILSON.TYPOGRAPHY BY J. S. CUSHING & CO. , NORWOOD, MASS.PRESSWORK BY ROCKWELL & CHURCHILL, BOSTON.ΤΟHIS WIFEWhose Affectionate SympathyAnd Appreciative InterestHave so Greatly Lightened the LaborOf PreparingTHIS WORKIt is Gratefully Dedicated byTHE AUTHOR

TABLE OF CONTENTS.CHAPTERTopical AnalysisPreface ....I. The Earliest Forms of Government .II. The Governments of Greece ...III. The Government of Rome .....IV. Roman Dominion and Roman Law..PAGEviixxxiii12691142V. Teutonic Polity and Government during the Middle Ages ...... 162VI. The Government of France .... 198VII. The Governments of Germany 247VIII. The Governments of Switzerland .... 300IX. The Dual Monarchies: Austria-Hungary, Sweden-Norway .... 333X. The Government of Great Britain 364XI. The Government of the United States ... 438XII. Summary: Constitutional and Administrative Developments .. 555XIII. The Nature and Forms of Government... 572XIV. Law: Its Nature and Development..... 587XV. The Functions of GovernmentXVI. The Objects of Government..Index ....612629641V

TOPICAL ANALYSIS.SEC.I. The Early Forms of GovernmentThe Nature of the Question .......The Races to be studied: the Aryans ..Semitic and Turanian Instance ..Government rested First upon Kinship ....Early History of the Family: Was it originally Patriarchal?The Evidence ....The Warrantable Conclusion..From the Patriarchal Family to the StatePrepossessions to be put awayThe State and the Land ..Contract vs. Status ....Theories Concerning the Origin of the State: the Contract TheoryTraditions of an Original Lawgiver ....1-4212345678910131415Theory of the Divine Origin of the State .The Theories and the Facts ....The Truth in the Theories161719Conclusion ..The Beginnings of GovernmentThe Family the Primal Unit202122Persistence of the Idea of Kinship .. 23Fictitious Kinship: Adoption 24Kinship and Religion ..... 25The Bonds of Religion and Precedent . 26The Reign of Custom 27Fixity of System the Rule, Change the Exception... 28Changes of System outrun Changes of Idea.. 29How did Change enter?.... 30Differences of Custom... 31Antagonism between Customs 32Competition of Customs .The Better Prevail .Isolation, Stagnation ...Movement and Change in the West.Migration and Conquest.03334353637viiviii TOPICAL ANALYSIS .SEC.Inter-tribal Imitation ..... 38Individual Initiative and ImitationInstitutional Changes: Choice of RulersHereditary replaced by Political MagistracySummary ...II. The Governments of Greece ...3940414243-159The Evolution of Government . 43The Patriarchal Presidencies: Legislation .Tribal Justice ....Patriarch and Priest444546Not Lord, but Chief.The Primitive Δήμος .4748The Antique ' City ' .Confederate Growth of Family Groups.The City ' a Confederacy of Gentes..Religion: the PriesthoodPrimogeniture ...The City's Religion .495051535556Decay of the Antique City .. 57HELLASThe City absorbs its Constituent Parts ..Decline of the Elders' Separate Powers ..Political Disintegration of the Gens ..Greece not Hellas ....The Migrations of the Greek PeoplesThe Phoenician Influence ....The Known Settlement of the Ægean.The Greek MediterraneanRace Distribution ...596061.66-99626366676869The Greek Colonial System .Colonial Constitutions ...7071Law of Constitutional Modification in HellasUnion and Nationality among the Greeks ....Religious Community: the Delphic AmphictyonyThe Delphic Oracle: its Influence ...Political Aggregation: Achæan SupremacyCretan PowerSupremacy of ArgosGames and Festivals: the Hellenic Spirit.The Delian Confederacy .737475777879808182Athenian Empire .84The Peloponnesian War: Oligarchies vs. Democ- racies ..... 85TOPICAL ANALYSIS. ixMacedon ....The Hellenization of the East .The Achæan LeagueSEC.878892The Etolian League 95SPARTA.....Rome and the Western Greeks ..After Roman Conquest ..Greek Constitutions ..9899.100-117100Fixity of the Spartan Constitution . 101The Spartans a Garrison of Conquerors 102Slaves and Helots .. 103The Perioci .... 104The Spartiate Property Laws and State Guardianship ... 105The Two Kings .107The Council of Elders 108The Assembly ...... 109Election of Elders 110The Ephors .... 111The State Discipline ...LycurgusATHENSThe Administration of JusticePrinciple of Growth in the Spartan Constitution .The City of Solon: Kingship gone .113114116117118-159118The Archonship ... 119Nine Archons 120Solon Archon Eponymus: the Crisis 121The Draconian Legislation 122Solon's Economic Reforms 127Solon's Political Reforms . 130The Council ....The Assembly .The Heliaia ...The Senate of the AreopagusThe New Principles introduced ..Fate of the Solonian Constitution131132133134135136Pisistratus 138Cleisthenes.. 141New Citizens . 142The Demes . 143The New Tribes and the Council 144New Phratries ..... 145Expansion of the Popular Jury CourtsOstracism .147148X TOPICAL ANALYSIS .SEC.Effect of the Cleisthenian ReformsLocal Administration ...The Power of the People149150151Economic Effects of the Persian Wars 152The Reign of Pericles .... 154Decline of Athens 156The Metoici ....The Athenian Slaves ..Greek Administration .157158159III. THE GOVERNMENT OF ROME 160-240The Ancient Roman Kingdom 160Leading Peculiarity of Roman Constitutional Development .. 161The Reforms of Servius Tullius 162The Centuries ..... 163The Ancient Constitution ..The Comitia Centuriata ..Beginnings of the RepublicThe Consuls ......Quastores Parricidii .164165166167169Patrician ControlThe Senate ....Composition of the Senate .....Senate's Character and InfluencePresidency of the Senate in Constitutional Change ... 174The Oppression of the Plebeians ..Strength of the Plebs ...Secession of the Plebs ..170171172173175176177The Public LandTribunes of the People .A New AssemblyThe Plebeians and the Publication of the LawThe Decemvirs ( B.C. 451-449)178181182183184Second Secession of the Plebs .. 185The Comitia Tributa 186The XII. Tables 187War and its Constitutional Effects 189The Equalization of the Orders .. 190The Contest for Political Office ..The Licinian Laws (B.c. 367) .191192Subdivision of Offices 193Supremacy of the Senate 194The Government of Italy .197TOPICAL ANALYSIS. xiSEC.The Provinces ....Organization of Provincial AdministrationCharacter of Provincial AdministrationCauses of Failure ...Constitutional TendenciesThe Oligarchy ......199200202203204207Decay of the Republic.. 208An Emperor the Remedy.. 209Genesis of the Empire ...... 210Tiberius Gracchus to Augustus 211Transmutation of Republican into Imperial Institutions .. 214The Completed Imperial Power 218The New Law- making.... 219Judicial Powers of the Senate..Growth of New Offices221222Religious Separation and Antagonism....The Provinces .....The Empire Overshadows Rome.Nationality of the Later Emperors .The Army . ……… .Changes in the System of Government.Constitutional Measures of Diocletian .Reforms of ConstantineThe Household OfficesThe Eastern and Western Empires: Greek and TeutonGeneral Summary of Ancient Politics ...223225226227228231233237239240241-248The City the Centre of Ancient Politics .. 241The Approaches to Modern Politics: Creation of thePatriarchal Presidency 242Citizenship begins to be dissociated from Kinship .... 243Influence of a Non-Citizen ClassDiscussion determines Institutions..... 244245Politics separated from ReligionGrowth of Legislation .Empire ....IV. Roman Dominion and Roman Law..Currency of Roman Law ....Character of Early Roman Law..Rome's Lay ReligionPlebeian Discontent with the Law...Growth of the Law by Pontifical Interpretation .The Prætor ...246247248249-285249250251253254257The Law and the Prætor's Application of it .258xii TOPICAL ANALYSIS.SEC.Prætor vs. Pontiff 259The Prætor's Edict 260A Prætor Peregrinus .. 261The Jus Gentium . 262The Jus Gentium and International Law 263Influence of the Jus Gentium on the Jus Civile .... 264Completion of the Prætor's Power..... 265Administration of Justice in the Provinces . 268The Law of Nature ... 269Roman Citizenship and the Law 272The JuristsInfluence of the Jurists .The Jurisconsults under the Empire .Imperial Legislation ...273274275278The Codification of the Edict 279Final Codification of the Law.. 280The Completed Roman Law: its Municipal Life ..Diffusion and Influence of Roman Private Law.282283Influence of Mosaic Institutions .....Roman Legal Dominion in the Fifth CenturyV. Teutonic Polity and Government during the Middle Ages ...... 286-350Contact of the Teutonic Tribes with Rome ..Primitive Teutonic Institutions284285Free, Unfree, and NobleInter-Communal Government .Military Leadership: The Comitatus .Contrasts between the Teutonic System and the Roman .Roman Allegiance to the State .... Teutonic Personal Allegiance ...Temporary Coexistence of the Two Systems ..'Personal Law ...Relative Influence of the Two Systems ..Roman Influence upon Private LawRoman Towns .....The Fusion of the Two Systems ..286287288289290291292293294295296297298299Effects of Movements of Conquest upon Teutonic Institutions ... 300(1) The New Kingship ..(2) The Modified Land TenureThe Feudal System ...Genesis of the System ..Local Differences in Feudal DevelopmentCommendation .Political Disintegration ...301302304305309310311TOPICAL ANALYSIS. xiiiSEC.The Feudal Conception of Sovereignty .Feudalism and the TownsThe Guilds ....313314315The City Leagues.316Unifying Influences: 317(1) The Roman Catholic Church 318(2) The Holy Roman Empire .320Centralizing Forces: the Carolingians 322The Capets: Concentration of Feudal Power. 323Piecing together of Austria and Prussia .. 324The Diffusion of Roman Law in Europe 325The Barbarian Codes ...... 326Custom and Written Law in France . 327The Study of the Roman Law .... 328Influence of the Schools ... 330Entrance of the Roman Law into the Legal Systems ofEurope ... 334In France .. 335The Method..... 336Local Custom in France.... 338Unifying Influence of the Royal Prerogative. 339The Parliament of Paris ... 341The Code Napoléon .. 342In Germany.. 343Reason for Germany's Reception of Roman Law 344The Law that was received 347The Outcome.. 348In England 349VI. The Government of France .... .351-475Growth of the French Monarchy .351Perfection of the Feudal System in France.. 353Materials of the French Monarchy . 355Local Self-Government .. 356Rural Communes . 357Liberties of Towns: the Roman Municipalities .359The Non-Roman Municipalities 360The Towns and the Crusades 363Municipal Privileges 364Forms of Town Government . 366Decay or Destruction of Municipal Self- Government 367The Pays d'Etat .... 368Territorial Development of the Monarchy . 371The Crusades and the Monarchy . 372xiv TOPICAL ANALYSIS.SEC.Institutional Growth ..The States-GeneralCharacter of the States-GeneralAdministrative Development .....373374375376Growth of the Central Administration .. 377The Council of State ... 378The Parliament of Paris .. 379Growth of Centralized Local Administration: Louis IX. 380Steps of Centralization ... 381Personal Government: Louis XIV..... 382The Completed Centralization: the Intendant .. 383The Province ...... 384Judicial Centralization 385The Royal Council and the Comptroller- General 386Spirit of the Administration 387The Revolution....Advances towards Liberal Institutions .The Third Republic ......388The Reconstruction by Napoleon .... 389392393The National Assembly of 1871-1876 394A Balance of Parties .... 395The Framing of the Constitution 396Scope and Character of the Constitutional andOrganic Laws of 1875 .... 398Sovereignty of the Chambers . 399The Chamber of Deputies 402Election by Majority 405The Senate ..In Case of Usurpation ....The National Assembly: its FunctionsRevision of the Constitution406409410411The President of the Republic ... 415Influence of the President and Senate 418The Cabinet and the Council of Ministers . 419The Ministries ... 420The Cabinet.... 421The Council of Ministers 422Relations of the Ministers to the President . 423The Patronage of OfficeMinisterial ResponsibilityQuestions and InterpellationsThe Course of Legislation425427428431Committees .The Budget Committee .432434TOPICAL ANALYSIS. XVSEC.Government by the ChambersThe Administrative and Judicial Powers of the435Executive .... 436Departmental Functions .. 438Local Government .... 440-471The Department: the Prefect ... 442The Spoils System in France ... 446The General Council of the Department ... 447The Departmental Commission 453Central Control ...... 454The Arrondissem*nt 455The Canton .. 456The Commune 457The Communal Magistracy 461The Communal CouncilAdministrative Courts: the Council of State ..The Prefectural Council .....Ordinary Courts of Justice .464468469472Jury Courts....Tribunal of Conflicts ..VII. The Governments of Germany .474475.476-630The Feudalization of Germany . 476Official System of the Frankish Monarchy: the Grafen ..... 477The Magistracy of Office and the Magistracy of Proprietorship ... 478Hereditary Chiefs .... 479Full Development of Territorial Sovereignty 480The Markgraf…….. 481The Empire ... 482The Imperial Cities 483The Swiss Confederation 484Austria's Rival, Prussia 485Frederick the Great .. 486Napoleon: The Confederacy of the Rhine. 487The German Confederation ..... 489Period of Constitutional Reform 490The North German Confederation .. 491Austria out of Germany .492The German Empire ..... 493-556Austria and Germany: Character of the German Empire ... 494The Central German States and the Empire .496The Character of the Empire ...The Emperor497498xvi TOPICAL ANALYSIS.SEC.Sovereignty of the Empire in Legislation .....The Bundesrath: its Composition and CharacterRepresentation of the States in the Bundesrath ....Functions of the Bundesrath .....Organization of the Bundesrath499500501504510Committees ... 514The Reichstag: its Character and Competence 516Composition of the Reichstag 517Sessions of the Reichstag 524Organization of the Reichstag. 526Election of Officers ..Powers of the Reichstag.527528Classes and Parties 529Imperial Administration .. 530The Imperial Chancellor 533The Vice Chancellorship 542Foreign Affairs ... 543Internal Affairs .. 544Weights and Measures 545Money... 546Railways 547Posts and Telegraphs .. 552Patents, etc.... 553Military and Naval Affairs 554Finance. 555Justice 556Citizenship.557The Government of PrussiaStages of Administrative Development .558-630559Process of Centralization ..... 560First Results of Centralization 562Justice and Finance 564Fusion of Departments of War and Domains 566Differentiation of the Central Bureaux .. 567Reforms of Stein and Hardenberg . 568Reform of Local Government before 1872 571Landgemeinde and Manors 572Reform of 1872 573The Executive Departments 574The Council of State . 576The Staatsministerium 577The Supreme Chamber of Accounts 578The Economic Council ... 579The Ministers in the Legislature . 580TOPICAL ANALYSIS. xviiSEC.The Landtag: the House of Lords 581The House of Representatives .. 583The Electoral System 584Equality and Competence of the Houses 586The King's Power of Adjournment and Dissolution . 587Local Government .588-618The Province .... 590Communal Estates . 599The Government District 600The " President of the Administration " 604The District Committee 605The Circle 607The Landrath and the Circle Committee 608The Diet of the Circle ....... 609The Circle the Basis of Local Government 611The Magisterial District .... 612The Rural Commune 613The City Commune .. 614General Principles of Prussian City Government .. 616The Administration of Justice 619Administrative Courts ... 627The Courts of Conflicts .. 629The Prussian Courts and Constitutional Questions .... 630VIII. The Governments of Switzerland ... .631-728Feudalism in Switzerland ... 631First Movements towards Cantonal Independence 632The Processes of Confederate Growth ...French InterferenceThe Sonderbund War .633634635The New Constitution .. 636Character of the Constitution .... 637Nationality and State Sovereignty 639Large Constitutional Grants 640Guarantee of the Cantonal Constitutions . 642The Cantonal Governments .... ...643-662The Cantonal Constitutions and the Federal Constitution ... 643Position of the Legislative Power.... 645A Single House ..... 646Functions of the Cantonal Legislatures 649The Executive Power .... 650The People's Control over Legislative Action 652The Popular Veto 653The Initiative, - Imperative Petition 654xviii TOPICAL ANALYSIS .SEC.The Referendum....Origin of the ReferendumIts Operation .....Local Government: the Districts..The Gemeinde ....656657658659660The Federal Government . .663-728The Federal Executive 663The Executive and the Legislature . 670The Executive Departments .. 672Mixed Functions of the Executive . 675The Army ... 680Detail of Federal Supervision 681Execution of Federal Law . 682Appeal in Judicial Cases 683The Federal Chancellor 685The Federal Legislature . 686Composition of the Houses: I. The National Council ... 687II. The Council of States 693Functions of the HousesLegislative Procedure696697Revision of the Constitution 698The Federal Referendum …….. 699Functions of the Federal Assembly 701Administration of Justice: I. The Cantonal Courts . 703II. The Federal Court 712Criminal Jurisdiction of the Federal Court 717Cases in Public Law 719Civil Cases in Private Law. 722Criminal Cases ... 726III. The Federal Council: Administrative Cases 727Inter-Cantonal Judicial Comity 728IX. The Dual Monarchies: Austria-Hungary, Sweden- Norway. 729-831The Dual Monarchies .Austria- Hungary ..729.730-783Austria's Historical Position . 730Acquisition of Hungary and Bohemia. 731Bohemia .... 732Moravia 733Hungary 734Transylvania, Slavonia, Croatia . 735Galicia, Dalmatia .... 736Bosnia and Herzegovina... 787TOPICAL ANALYSIS. xixAustria-Hungary: Nature of the Union..Variety of RaceHome Rule: Bohemia, HungarySEC.738739740The Constitution of 1867 .... 743Dual Character of the Monarchy 744The Fundamental Laws .... 745The Common Government: the Emperor- King 746Succession , Regency, etc... 748The Common Ministries . 749The Economic Relations of Austria andHungary . 753Patents, Posts, and Telegraphs ... 754The Delegations 755Citizenship . 760The Ministry .Legislatures ...The ReichsrathThe LandtagsLocal GovernmentThe Government of Austria: The Executive .. 761Legislation: The National and Provincial762764765772773The Government ofHungary: The Executive . 775The Diet... 778Local Government 782Croatia-Slavonia . 783Sweden-Norway .784-831The Danes and Northmen 784Early Institutions of Sweden and Norway. 785Union of Denmark, Sweden, and Norway .The Independence of Sweden ....Oscillating Development of the Swedish Constitution .. Bernadotte and the Accession of Norway ......Norway's Fight for Independence and her NewConstitution.....786787788789792Constitutional Contrast between Sweden andNorway ... 794The Fundamental Laws . 795The Common Government: The King 796The Throne ... 800Foreign and Common Affairs 803War..... 805Legislative Control of Foreign Relations .. 807Concurrent Legislation ....The Joint Councils ....808809XX TOPICAL ANALYSIS.Citizenship ......The Government of Sweden ..SEC.811812The Swedish Executive: The King and Council 813The Riksdag 816Joint Legislation upon Financial Questions 820Local Government .. 821Changes in the Constitution 822The Government of Norway: the Norwegian Execu- tive 823The Storthing .825Local Government 829Changes of Constitution 830The Two Countries 831X. The Government of Great Britain .....I. Central Government..Origin of the ConstitutionPrimitive Teutonic InstitutionsInstitutional Changes effected by Conquest.The Hundred-moot and the Folk- moot.The English Kingdom and the English CountyThe Witenagemot.832-1031..832-937832833834835836........ 837Powers ofthe Witenagemot 838The Norman Feudalization 839The Great Council of the Norman Kings 840The Feudal System in England ..Character of English Institutional Growth841842The Course of Development ..... 843The Permanent Council 844Composition of the Permanent Council 845The Powers of the Permanent Council 846The Law Courts ..... 847Parliament ...... 848Genesis of the Two Houses 852The Privy Council 854The Privy Council assumes Judicial Powers . 855Origin of the Cabinet ..... 856Development of the Cabinet 857Parliament and the Ministers 858Disappearance of Impeachment 859The Executive 860Position of the Cabinet .... 862Appointment of the Cabinet Ministers . 863Composition of the Cabinet .. 864TOPICAL ANALYSIS. xxiSEC.Ministerial Responsibility 868Legal Status of the Cabinet.. 870Initiative of the Cabinet in Legislation... 871The Prime Minister ... 872Departments of Administration 873The Five Great Offices of State 874The Admiralty, the Board of Trade, and the Local Government Board .... 876The Board of Agriculture .. 877The Post-Office ... 878The Treasury 879The Chancellor of the Exchequer 880The Estimates .... 881Administrative Departments of the PrivyCouncil 883The Lord Privy Seal 884The Chancellor of the Duchy of Lancaster 885Political Under Secretaries ... 886Administration of Scotland and Ireland . 887The Lord Chancellor . 888The Cabinet as Executive .. 889Parliament: I. The House of Commons, its Origin , Position, and Character .... 890Historical Contrasts between County and BoroughRepresentatives . 891Geographical Relations of Boroughs and Counties ...... 893Parliamentary Reform 894Election and Term of the Commons 901Summons, Electoral Writ, Prorogation . 905Organization of the House... 909II. The House of Lords: its Composition .911Function of the House of Lords in Legislation . 914The House of Lords as a Supreme Court ...... 915Legislation 916The Constitution of England . 917The Courts of Law.. 919Judicial Reform: the Reorganization of 1873-1877 . 920The Chancery Division .. 921The Court of Appeal . 922The House of Lords ... 923AJudicial Committee of the Privy Council .... 924The Lord Chancellor ... 925xxii TOPICAL ANALYSIS .SEC.Civil Cases ....The County Courts .Juries ....Criminal CasesQuarter and Petty SessionsThe Justices of the Peace .926927930931933934Police ..II. Local Government936.938-1010Complex Character of Local Government in England 938General Characterization ...... 941The County its Historical Rootage.. 942Early Evolution of the County Organs 944Decline of the Sheriff's Powers 945Justices of the Peace ..... 946Functions of Justices of the Peace prior toRecent Reforms .. 948Character and Repute of the Office of Justice .. 950The Lord Lieutenant 951The Reform of 1888 .. 952Administrative Counties and County Boroughs ....The County Councils: their ConstitutionThe Number of Councillors ...955 957959The County Franchise .... 962Powers of the County Councils . 964The Licensing Function . 966The Financial Powers of the Council 968Additional Powers . 970The County Budget.. 971The Police Powers . 974County Boroughs .Other Boroughs ..The Parish ....The Poor-law ParishThe Reform of 1894 .Parochial Powers .Supervision .Urban Parishes .The Rural DistrictThe Urban DistrictWomen.....Municipal Corporations .Judicial Status of Boroughs ..The Financial Powers of a Municipal CouncilBoroughs and Urban Districts9759769779829839849859869879899939959979991001TOPICAL ANALYSIS. xxiiiSEC.Central Control of Urban Authorities . 1003London .... 1004School Districts 1007Central Control .... 1009Local Government in Scotland 1010The Government of the English Colonies .. 1011-1031English Colonial Expansion 1011English Colonial Policy 1012Lord Durham in CanadaThe Self- Governing Colonies ..10141015The Government of Canada 1016The Governments of Australia 1023The Powers of the Colonial Courts 1024The Crown Colonies 1026Powers of Colonial Governors . 1027India ....... 1028Greater Britain .. 1031XI. The Government of the United StatesThe English Occupation of AmericaAdaptation of English InstitutionsThe New England ColoniesThe Separate Towns1032-1351103210331035... 1037Union of the Towns ... 1038Forms of Town Government . 1039Colonial Organization 1040The Southern Colonies ... 1042Contrasts of Character . 1043Expansion without Separation 1044Southern Colonial Society 1045Government of Colonial Virginia . 1046Virginia's Colonial Assembly . 1047The Constitutions of the other Southern Colonies . 1048The Middle Colonies ..... 1049The Charters: Massachusetts .. 1050The Connecticut Charter 1051Rhode Island's Charter.. 1052Proprietary Governments ... 1053Direct Government by the Crown 1055Development of the Assemblies . 1056Development of Constitutional Liberty in the Colonies 1058Political Sympathy of the Colonies ... 1059American as compared with English ConstitutionalDevelopment ... 1060xxiv TOPICAL ANALYSIS.SEC.Process of Growth in America Federation , inEngland Consolidation ..... 1061Conscious Development of Institutions in America 1062English Law and Precedent. 1063Union Preliminary Steps ... 1065Separateness of the Colonial Governments 1066The Confederation ....... 1067The Articles of Confederation .Weakness of the Confederation10681069Need of a Better Union ...The Constitution: Colonial PrecedentsCharacter of the New Government107010711074Opinion .....Character of the Government Changes withEarly Sentiment towards the UnionEarly Tolerance for Threats of Secession .Growth of the National Idea ....1075107610771078Railroads, Expansion, and War aidthe National Idea ... 1080Slavery stands in the Way of Nationality ..... 1081Civil War completes the Union .. 1082Present Character of the Union 1083Present Character of the Governmentof the Union ... 1084The States not Administrative Divisions but Constituent MemIbers of the Union... 1086Character, Organs, and Functions of the States .Functions of the State Courts with Regard to the Inter1087-1259The Law of the States: its Character ....pretation of Federal Law ...Scope of State Law ....Legislative Powers of the UnionPowers withheld from the StatesPowers left with the States ...Non-Constitutional Provisions in State Constitutions .. 1096Distrust of Legislation ...Objections to the PracticeConstitutional AmendmentsIn England , France, and Germany108810901091109210931094Preliminary Steps of AmendmentProposal of Amendments .Conflict of Laws .1097109811011102110311051108TOPICAL ANALYSIS . XXVSEC.Detrimental Effects ..... 1109In the Matter of Taxation 1111In the Criminal Law . 1112Proposals of Reform .... 1113Evils of the Case easily exaggerated 1114Louisiana and New Mexico 1115Interstate Law: Commerce.. 1116Posts and TelegraphsCitizenship ......Elements of ConfusionNaturalization ....In Germany and SwitzerlandCitizenship under a Confederation .111711191121112211241125Central Governments of the StatesThe State Legislatures: their Powers .11261128Limitations of Length of Session, etc.Other Limitations11291130State Legislatures not Sovereign Bodies ..Legislative Organization ......11321133Reasons for Two Houses in State Legislatures 1134Historical Precedents ....Terms of Senators and RepresentativesNames of the Houses . ......Qualifications of Senators and Representatives1136113711381139Legislative ProcedureStanding CommitteesThe Suffrage .Women.The Ballot ..The State Courts114011411143114511461147Common Law Courts: ( 1 ) Justices of the Peace.. 1151(2) County or Municipal Courts(3) Superior Courts ..11531155(4) Supreme Courts(5) Supremest Courts .Courts of EquityFusion of Law and Equity .Probate Courts11581159116311641166Judges ..... 1168Qualifications of Judges . 1171Ministerial Officers of the State Courts . 1172The State Executives 1174Terms of Office of Governor and LieutenantGovernor 1178xxvi TOPICAL ANALYSIS.SEC.Qualifications of Governor and Lieutenant Governor 1179Terms of Other Officers 1180Contrast between State and Federal Executives ...Real Character of a State Executive 'Relations of the Local to the Central11831185Organs of Government in the States ... 1187The Governor .... 1189The Secretary of State . 1195The Comptroller or AuditorThe State Treasurer1202.... 1203The State Superintendent of EducationConstitutional Diffusion of the Executive Power ..Full Legal but no Hierarchical Control120512061208Local Government: General Characteristics ... 1209Duties of Local Government ... 1210Local Varieties of Organization 1211The Township: its Historical Origin ... 1214Absorption of the Town in Larger Units ofGovernment. 1216Town-Meeting . 1218The Town Officers . 1219The Township of the Northwest . 1222Its Origin ..... 1225Spread of Township Organization 1226Township Organization .. 1228The Township in the Middle AtlanticStates 1234The New York Township .. 1235The Pennsylvania Township ..... 1236Origins of Local Government inthe Middle States .. 1237The Township of the South .. 1238The County 1239The Southern County 1242Where the Township exists .. 1243Villages, Boroughs, Cities ... 1245The Authorities of Urban Districts . 1248ACommon Model of Organization ..Organization of Government in Cities ..The Council ......124912501251School Administration 1253In the Northwest 1255Taxation .... 1257General Remarks on Local Government .. 1259TOPICAL ANALYSIS. xxviiSEC.The Federal Government: the Constitution ...Amendment of the Constitution .....Amendment of Foreign Constitutions .The Federal Territory ....The District of Columbia .Arsenals and Dockyards .The Territories .1260126212641265126612691270Post- Offices, Custom Houses, etc.. 1272Congress 1273The Senate.. 1274The Vice- President of the United StatesOrganization of the Senate....12791280Influence of the Standing Committees 1282The Senate and the Executive .. 1283The President pro tempore... 1284The House of Representatives ... 1285Apportionment of Representatives 1286Elections to the House 1289The Fourteenth Amendment. 1292Organization of the House .. 1293Acts of Congress ... 1299The Federal Judiciary: its Jurisdiction .Power of Congress over the Judiciary .The Existing Federal Courts ...130613081310ACourt of Appeals . 1311The Court of ClaimsThe Court of Private Land Claims ..The Division of Jurisdiction131213131314The Federal Judges ......The District Attorney and the Marshal1315.... 1317The Courts of the District of Columbia and of the Territories 1319Procedure of a Federal Court .... 1321The Federal Executive ... 1323Election of a President . 1324Practical Operation of the Plan: the Party Conventions 1326Qualifications for the Office of President ... 1327Duties and Powers of the President 1329Reform of Methods of Appointment to Federal Offices .... 1331The Presidential Succession .... 1333Relations of the Executive to Congress 1334The Executive Departments 1336Department of State 1338xxviii TOPICAL ANALYSIS.SEO.Department of the Treasury 1339The Bureau of Printing and Engraving 1340Department of War..... 1341Department of the Navy .1342Department of Justice .. 1343Post-Office Department .1344Department of the Interior 1346Department of Agriculture 1350Department of Labor .... 1351Interstate Commerce Commission 1351Civil Service Commission ... 1351Commission of Fish and Fisheries . 1351Printing Office .. 1351Smithsonian Institution 1351National Museum .... 1351XII. Summary: Constitutional and Administrative Developments . 1352-1386Continuity of DevelopmentThe Order Discoverable in Institutional DevelopmentCourse of Development in the Ancient World135213531354The Feudal System and the Modern MonarchEngland's Contribution13551356The Romans and the English ... 1357Likenesses between the Two Imperial Nations . 1358Popular Initiative in Rome and England 1359Rome's Change of System under the Empire 1360Fundamental Contrast between English and Roman Political Method ..... 1361The Development of Legislatures . 1362Powers of a Representative .1364Scope of Modern Legislation . 1365The Making, Execution, and Interpretation of Law .Charters and Constitutions13661368Creation vs. Confirmation of Liberties by ConstitutionThe Modern Federal State contrasted with ConfederationsDistinguishing Marks of the Federal State137013721377Existing Parallels and Contrasts in Organization .. 1380Administrative Integration: Relation of Ministers to theHead of the Executive .... 1381Relations of the Administration as a Whole to theMinisters as a Body …………….1383The Administration and the Legislature 1384TOPICAL ANALYSIS. xxixSEC.XIII. The Nature and Forms of Government 1387-1414Government rests upon Authority and Force 1387Not Necessarily upon Obvious Force .. 1388The Governing Force in Ancient and in Modern Society ...The Force of the Common Will in Ancient Society13891390Public Opinion , Ancient and Modern ... 1391The True Nature of Government ...... 1392Society an Organism, Government an Organ 1393The Forms of Government: their Significance ... 1394Aristotle's Analysis of the Forms of GovernmentCycle of Degeneracy and Revolution ....13951397Modern Contrasts to the Aristotelian Forms of Government 1398The Modern Absolute Monarchy .... 1399The Modern Monarchy usually ' Limited ' .Is Monarchy now succeeded by Aristocracy?English and Ancient Aristocracy contrasted .Present and Future Prevalence of Democracy1401140214031404Differences of Form between Ancient and ModernDemocracies .... 1405Nature of Democracy, Ancient and Modern 1406Growth of the Democratic Idea 1407Subordination of the Individual in the AncientState ..... 1408Individualism of Christianity and TeutonicInstitutions .... 1409The Transitional Feudal System 1410Rise of the Modern State . 1411Renaissance and Reformation . 1412The Modern Force of Majorities 1413New Character of Society 14144. Equity ...XIV. Law: its Nature and Development..What is Law? .....The Development of Law: its Sources.1. Custom2. Religion ...3. Adjudication5. Scientific Discussion ..1415-147214151416141714191421142314266. LegislationCustom againTypical Character of Roman and English Law.142714291431The Order of Legal Development .....The Forces Operative in the Development of Law……14321435XXX TOPICAL ANALYSIS.SEC.The Power of the Community must be behind Law .. 1437Both a Mirror of Conceptions and an Active Force .... 1440Roman Law an Example 1441The Power of Habit .....Law's Utterance of National CharacterGermanic LawSovereignty: Who gives Law?1442144314441445Certain Legal Conceptions Universal 1449Law and Ethics 1451Mala Prohibita 1452International Law 1457Laws of Nature and Laws of the State 1460Limitations of Political Law 1461Public Law 1462Private Law. 1463Jurisprudence . 1465The Analytical Account of Law. 1468The Analytical Account of Sovereignty 1469Summary . 1472XV. The Functions of Government .......What are the Functions of Government?The Nature of the Question..Classification .......I. The Constituent Functions .1473-15131473147414751478II. The Ministrant Functions . 1479History of Governmental Function: Province of the AncientState 1482Roman Conception of Private Rights 1484Powers of Roman Senate 1487Government the Embodiment of Society 1488Feudalism: Functions of Government Functions ofProprietorship ...... 1489The Feudal Monarchy .. 1491Modern De-socialization of the State. 1492More Changes of Conception than of Practice 1494Functions of Government much the Same now asalways ..... 1495The State's Relation to Property 1496In Sparta .... 1497Peculiar Situation of the Spartans ... 1498Decay of the System 1499In Athens ..... 1500In Rome .1501TOPICAL ANALYSIS. XXXISEC.Under Modern Governments .. 1502The State and Political Rights 1503As regards the State's Ministrant Functions .. 1504The State in Relation to Trade ..... 1505The State in Relation to Labor. 1506Regulation of Corporations . 1507The State and Public Works.. 1508Administration of the Conveniences ofSociety 1509Sanitation 1510Public Education 1511Sumptuary Laws 1512Summary 1513XVI. The Objects of Government .. .1514-1536Character of the Subject .... 1514The Extreme Views held 1515Historical Foundation for Opposite Views .... 1516The State a Beneficent and Indispensable Organ of Society ..Socialism and the Modern Industrial Organization1518... 1520A Middle Ground ....... 1521The Objects of Society the Objects of GovernmentNatural Monopolies .....15221524Control not necessarily AdministrationEqualization of CompetitionSociety Greater than Government .Natural Limits to State Action ..The Family and the State15261527152815291533The State and Education ..... 1534Historical Conditions of Governmental Action ... 1535Summary 1536{{GFDL}}