S OJXu^ f/rMiju^ 
 
THE EVOLUTION OF 
 GOVERNMENTS AND LAWS 
 
 EXHIBITING THE GOVERNMENTAL STRUCTURES 
 OF ANCIENT AND MODERN STATES, THEIR 
 GROWTH AND DECAY AND THE LEADING 
 PRINCIPLES OF THEIR LAWS 
 
 BY 
 
 STEPHEN HALEY ALLEN 
 
 "Quis custodiet ipsos custodesF'* 
 * 'Mens, et animus, et consilium et sententia civitatis, posita est in legibus 
 
 PRINCETON UNIVERSITY PRESS 
 
 PRINCETON 
 
 Sales Agents for the Author 
 

 Copyright, 1916, by 
 Stephen Haley Allen 
 
 Published August, 1916 
 
CONTENTS 
 
 INTRODUCTION.— Parental Authority. Public Reg- 
 ulation OF Private Morals. Public Regulation of 
 THE Family. Crimes and Punishments. Legislative 
 Morality. Legislative Expedients. Judicial Func- 
 tions. Executive Functions. Checks and Bal- 
 ances OF Governmental Powers. General Pur- 
 poses OF Government. 
 
 chapter 
 
 I. 
 
 Unorganized Tribes. 
 
 II. 
 
 Tribal Organizations and Simple Despotisms. 
 
 III. 
 
 Pacific Islands. 
 
 IV. 
 
 Mexico. 
 
 V. 
 
 Peru. 
 
 VI. 
 
 Egypt. 
 
 VII. 
 
 Chaldea, Babylonia, Judea and Persia. 
 
 VIII. 
 
 Arabia. 
 
 IX. 
 
 India. 
 
 X. 
 
 China. 
 
 XI. 
 
 Japan. "- ; ' 
 
 XII. 
 
 Turkey. 
 
 XIIL 
 
 Greece. 
 
 XIV. 
 
 Rome. 
 
 XV. 
 
 Mediaeval Europe. 
 
 XVI. 
 
 Russia.—-" 
 
 XVII. 
 
 Italy. 
 
 XVIII. 
 
 Spain and Portugal. 
 
 XIX. 
 
 Denmark, Sweden and Norway. 
 
 XX. 
 
 Germany, Austria, Hungary and Poland. 
 
 XXI. 
 
 Holland and Belgium. 
 
 XXII. 
 
 Switzerland. 
 
 XXIII. 
 
 France. 
 
 XXIV. 
 
 The British Empire. 
 
 o /I *^ o : <(^ 
 
XXV. United States. 
 XXVI. Modern Mexico, Central and South American 
 States. 
 
 GENERALIZATIONS.— Poverty of History. Methods 
 OF Acquiring and Conferring Political Power. 
 Methods of and Principles Applicable to the Se- 
 lection OF Public Officers. Direct Legislation. 
 Initiative and Referendum. Changes in the Forms 
 AND Functions of Governments. Methods of Origi- 
 nating Laws. Purposes of Laws and Motives 
 Prompting their Enactment. Punishment. Taxa- 
 tion. Personal Status. Family Relations. Land 
 Laws. Inheritance. Contracts. Combinations. 
 
 APPENDIX 
 Code of Hammurabi. — Babylon. 
 Laws of XII Tables. — Rome. 
 Code of Manu. — India. 
 Institutes of Justinian. 
 Penal Code of China. 
 Civil Code of France. 
 'Civil Code of Germany. 
 Magna Charta. — England. 
 Constitution of the United States. 
 
INTRODUCTION 
 
 The wide research and long study preceding and attending 
 the preparation of this work have been prosecuted for the 
 purpose of extracting from the recorded experiences of the 
 various people of the earth, in the governments they have 
 had and the laws under which they have lived, such broad and 
 general principles as may be helpful in the work of framing 
 constitutions and formulating laws. Neither government- 
 building nor law-making is a science. That the moral law 
 has some force and application is generally admitted, but 
 that it may be violated, when deemed expedient to do so, is 
 constantly asserted in practice. What is the moral law, and 
 where may its precepts be found? Perhaps most men will 
 answer, in the sacred books. But it may again be asked, 
 what books are sacred? To this the Brahman will unhesi- 
 tatingly answer, the Vedas and the code of Manu; the Bud- 
 dhist, the Greater or the Lesser Vehicle, according to his sect ; 
 the Mohammedan, the Koran; the Jew, the Talmud; the Par- 
 see, the Zend-Avesta; the Christian, the Bible, and so on 
 through less widely accepted codes. While much of agree- 
 ment can be found in all of them, there are direct antagon- 
 isms of the utmost importance. 
 
 Mohammed taught war and commanded the propagation 
 of the word by the sword. Christ forbade it, yet is recorded 
 as having said. 'T came not to send peace but a sword." 
 Manu taught caste and inequality among men ; Buddha equal- 
 ity. All the Asiatic codes, including the Christian, counten- 
 ance slavery, which the moral sense of Europe and America 
 now condemns. All nations resort to war; yet its immorality 
 is its most apparent characteristic. Every normal person 
 feels a capacity for determining the moral quality of the acts 
 of himself and of others, yet varying capacity, education and 
 surroundings lead to diverse judgments on many subjects. A 
 definition of the moral law as the rule determining right from 
 
2 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 wrong merely leaves the question unanswered. Nevertheless 
 it would seem self-evident that there are moral principles of 
 universal application, binding alike on all men, by which the 
 quality of human conduct may be tested. They attend and 
 inhere in our existence. The fact that any such principle is 
 not generally perceived or followed does not prove its non- 
 existence. 
 
 Many natural laws have remained concealed from man 
 through all the ages, and moral laws are natural laws. The 
 progress of the age is measured by the discovery and applica- 
 tion of natural laws to science and art. Perhaps a fair defi- 
 nition of the moral law would be, the Divine, the natural law, 
 which fixes the duty of man to himself, to other human beings 
 and to all living creatures. A man living in complete isola- 
 tion from all other human beings would owe himself the 
 duty to appropriate to himself everything that would con- 
 tribute to his welfare, comfort and highest development, tak- 
 ing food, clothing and shelter wherever he could get the best. 
 But civilized man does not live in isolation. His duty to 
 himself continues, but always subject to the limitations re- 
 sulting from the rights of others. A duty and corresponding 
 right attaches to each one to provide for himself and the 
 right of each becomes a limitation on that of every other 
 one. This conflict of interest and loss of right to freely 
 appropriate whatever is at hand is more than compensated by 
 the advantages of combined effort and mutual help. It is 
 clear that the moral law applies to all alike and commands a 
 just sharing among the people of all the things that nature 
 provides as well as of the fruits of their united efforts. In the 
 division of the bounties of nature equality appears to be the 
 natural law, but equality of opportunity to take every kind 
 of natural product and resource in a densely peopled world is 
 impossible. Human activities are largely applied to the search 
 for and gathering of useful things from the surface of the 
 earth and the mines beneath. The value of the things gained 
 by these activities depends in great measure on the labor ex- 
 pended in acquiring them. There is difficulty in separating 
 the added labor value from that of the thing as it was before 
 
INTRODUCTION 3 
 
 man touched it. Combination of effort for common ends 
 implies the assignment to each of a special part of the work. 
 Specialization requires the assignment to each of the task 
 for which he is best qualified. Division of labor calls for 
 the exchange of products. Advancing civilization is attended 
 by increased combination of effort, division of labor and spe- 
 cialization of occupation. Amid the complexity of modern 
 business conditions the applicability of fundamental moral 
 principles to the rights and duties of each member of society 
 is obscured and often lost to view. In the division of labor 
 inequalities of burden inevitably arise. In the distribution of 
 the benefits of combined effort equality of share to each is 
 difficult of attainment, if not impossible. The necessity for 
 direction and leadership implies a degree of mastery, which 
 may be carried so far as to become oppression. Out of a 
 disregard of duty and of the rights of others come oppres- 
 sion, strife and crime. In an ideal state the law would op- 
 pose its force to all unsocial and immoral conduct. To give 
 positive sanction to conduct that violates ethical principles is 
 inexcusable. Practical men do not expect an ideal system of 
 laws completely enforced, but a nearer and nearer approxi- 
 mation to the moral law. 
 
 Let us notice a few of the customs that have long been 
 sanctioned by the laws of great nations. In China the in- 
 feriority and servitude of the females to the males lies at 
 the foundation of the whole social system. The wife and 
 daughter may be abused, overworked and mistreated by the 
 husband and father almost at will. The power of the father 
 over his sons is also very great. Prior to the late revolution 
 the Imperial Clan and descendants of Confucius constituted 
 privileged classes and were supported from the taxes gath-. 
 ered from the toiling multitude. 
 
 In India, from remote ages, the rigid rules of caste have 
 kept the lower orders in enforced ignorance and servitude to 
 the ruling classes. Denial of the right to engage in any busi- 
 ness or calling, other than those assigned to his caste, has 
 deprived the members of all castes of that personal freedom 
 of effort so essential to high development. Rank injustice 
 
4 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and disregard of natural rights lie at the base of the whole 
 system. 
 
 In Mohammedan countries the Koran's precepts allow poly- 
 gamy, and far worse than this, command the propagation of 
 religion by war, the most immoral of all concerted efforts of 
 men. The errors and falsehoods of the Koran are taught as 
 divine revelation, and all inquiry tending to replace them with 
 truth is stifled. 
 
 Throughout all the history of Rome slavery was recognized 
 and the machinery of the government was employed to en- 
 force the dominion of the masters. Much of the learning of 
 the great jurists consists in rules governing the relations of 
 masters and their slaves, and determining the personal status 
 of persons as citizens, coloni, freedmen and slaves. Even in 
 our own land, within the memory of the writer and those of 
 his generation, slavery was the most important institution in 
 nearly one half of the Republic. No law can be a greater 
 departure from the moral law than that which sanctions 
 slavery and allows one man to compel another to serve him 
 according to his arbitrary will and take all the proceeds of 
 his labor to use as he pleases. Nothing can better illustrate 
 the tendency to depart from the moral law in framing human 
 laws than the history of the law of slavery. The feudal sys- 
 tem of land tenure after the decline of the Roman Empire 
 worked out results similar to slavery. 
 
 Without stopping at this time to apply moral tests to the 
 leading principles of modern law in Europe and America, 
 let us consider what influences produced the laws above men- 
 tioned. Clearly the authors of such laws were not guided in 
 their work by any moral principles, for the injustice of them 
 is obvious. The universal motive has been advantage for 
 the ruling class, and the excuse for taking the advantage has 
 been expediency or necessity. During periods of war or civil 
 discord men seek to assure their own safety by the destruction 
 of their enemies. The victors in the contest seldom give nice 
 consideration to moral rules in imposing term on the van- 
 quished. Primitive tribes either kill or enslave their captives. 
 Slavery has its root in war. Greeks and Romans, though ad- 
 
INTRODUCTION 5 
 
 mining the immorality of slavery, enslaved their captives and 
 always maintained the dominion of the masters by law. In 
 the conquest of India by the Aryan invaders the subjugated 
 natives were assigned to a servile class. The system of castes 
 arose from the organization of the priestly and military orders 
 and the enslavement of the native races. The victor in a 
 fierce conflict often considered himself humane to accord life 
 to his enemy on terms of perpetual service. The institution 
 of slavery was never originated by a deliberative body of 
 law-makers, nor by any great autocrat acting merely as a law- 
 giver. Where the institution has existed, law-makers have 
 undertaken to apply some moral rules to its incidents, leav- 
 ing its fundamental vice undisturbed. We shall find as we 
 proceed that the habit of accepting immoral systems and then 
 attempting to apply moral principles to their incidents is uni- 
 versal. The enslavement of the recently overpowered and 
 disarmed enemy appears in very different light from that of 
 the child born in slavery. In the latter case the law of in- 
 heritance of condition is required to pass mastery from the 
 captor to his son and the status of a slave from the captive 
 to his child. 
 
 Under the feudal system conquest of land carried with it 
 rulership over the occupants of it, and a theory of ownership 
 of the face of the earth was made to give in effect ownership 
 of the people inhabiting it. This mastery was mitigated in 
 time by rules governing the relations of lords and tenants 
 and out of these rules came the early English laws of real 
 property. It cannot be truthfully said that the idea of abso- 
 lute ownership of the face of the earth is an outgrowth of 
 war. It seems rather to have arisen from continued occu- 
 pancy by successive generations of families and tribes. The . 
 influence of habit, education and environment, in moulding 
 opinions on all questions of political science, is quite as 
 marked as in religion, fashion and industrial habits. Noth- 
 ing is more natural or more common than to base reasoning 
 on the fundamental principles of existing institutions, and to 
 assume that the existing system is in its main features a 
 natural and necessary one. Thus in Roman jurisprudence 
 
6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 patria potestaSj slavery and inheritance of personal status and 
 of property were foundations which endured a thousand years. 
 So also in India caste is the key to all judicial research, and in 
 China paternal authority and filial piety. Following the 
 American revolution individual liberty and restriction of the 
 powers of government were the leading ideas of the revolu- 
 tionists concerning social organization. The founders of the 
 United States were close students of the relations of the state 
 to its citizens, but did not concern themselves deeply with the 
 laws governing the relations of man to man, or attempt radi- 
 cal changes in the laws relating to property. Even so immoral 
 a business as the trade in African slaves was not prohibited at 
 once, and slavery was recognized as lawful though immoral. 
 Freedom from the unnecessary restraints of government was 
 their great desideratum. The word liberty is given a great 
 variety of meanings. As expressive of the freedom of action 
 which is permissible to a person it must necessarily mean such 
 freedom as is compatible with equal freedom for all others. 
 Where many persons live in close proximity to each other, 
 complete freedom of action in each with full protection 
 against the acts of others is impossible. The moral law im- 
 poses its restraints, and not only denies all liberty to wrong 
 or injure others, but enjoins positive duties toward them in 
 endless variety resulting from the interdependence of man 
 and his fellows. No system of laws has ever yet been worked 
 out on even a professed adherence to fundamental moral 
 principles. 
 
 Most of the confusion of thought and defective reasoning 
 of those who speak and write on the subject of political science 
 arise from a failure to observe the difference between ques- 
 tions of morality and questions of expediency and the limi- 
 tations on expediency imposed by morality. While it is 
 impossible to draw sharp lines of separation, it is not difficult 
 to perceive that each has its legitimate field, and that the 
 science of law, when law-making becomes a science, must rest 
 on the application of moral principles to the determination of 
 the rights of men and their conduct in life and an intelligent 
 understanding of the principles which afifect the selection of 
 
INTRODUCTION 7 
 
 expedients for the accomplishment of moral ends. Real 
 progress and improvement in social conditions follow the 
 promulgation of the moral law in such form that it is learned, 
 understood and accepted as authentic by the multitude. Most 
 great teachers of it have given their rules^ a religious sanction. 
 It is entirely logical to do so, for the moral laws which should 
 govern the relations of men must emanate from the overruling 
 power that gives life. Moses, Confucius, Gautama, Christ 
 and Mohammed, have each left a deeper and more enduring 
 impression on the world than all the conquerors who have 
 terrorized the earth combined. The fact that error is com- 
 bined with truth in some of their teachings does not disprove 
 the divinity of the moral law. It may prove the existence of 
 the human element in the teacher and his liability to err. The 
 work of these great teachers has been truly constructive, while 
 that of the great warriors has been the organization of forces 
 and the use of them for purposes of destruction and mastery. 
 Simple moral truths of universal application lie at the base 
 of every great system of religion. The beliefs and ceremonials 
 are the shell and husks, ostensibly designed to protect and 
 nourish the kernels of truth, yet in fact concealing them. It 
 is easily perceived that moral principles are eternal truths, 
 established by and according with the power that rules the 
 universe. They are the same everywhere and under all cir- 
 cumstances. The imaginings as to the unknowable, the 
 priestly establishments, the creeds and religious ceremonials, 
 human inventions, are changed and moulded to suit changing 
 tastes and inclinations. 
 
 Departure from the moral law in human conduct is due 
 either to unreasoning impulse or views of expediency, or both 
 combined. The rules of morality and expediency must of 
 necessity be identical as to acts or conduct affecting the actor 
 alone, for it is right to do what best promotes his permanent 
 welfare, and it is also expedient. The departure from the 
 true course in such matters is usually due to a desire for some 
 excessive temporary pleasure, to be compensated later by cor- 
 responding pain or depression, or the gratification of some 
 particular desire at the expense of others more laudable. 
 
8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 There is full liberty of choice of food, clothing, ornament, 
 labor, recreations, fields of inquiry, aims in life, ideals, and 
 of every activity so far as each of them is equally consistent 
 with human welfare. 
 
 In conduct affecting others expediency is the justification 
 which the wrongdoer makes to himself for the greatest de- 
 parture from moral rectitude. Murder, robbery, theft, forg- 
 ery and every other crime and intentional wrong to others, 
 have their root in a belief or impression of the expediency of 
 the act. Expediency is the justification claimed for all crafty 
 schemes through which men gain riches and power to the 
 detriment of others. Expediency is the excuse for falsehood 
 and cowardly neglect of duty. The inability of a man to 
 protect himself and those dependent on him by strictly moral 
 means makes room for resort to immoral acts, deemed neces- 
 sary. It is immoral to kill or maim another, yet deemed 
 justifiable in self-defense or to protect one's family. Though 
 expediency prompts to all kinds of immoral conduct, it has its 
 legitimate field of vast extent. There are many different ways 
 of accomplishing a desirable end by moral methods. The 
 choice and use of expedients are the most common employ- 
 ments of the mind. The moral law fixes limitations. 
 Expediency may freely lead in every path that touches no for- 
 bidden ground. The diversity of human accomplishments is 
 due to choice of expedients and ends to be accomplished. 
 Choice and use of moral expedients for moral ends are the true 
 field of liberty. Choice of food, clothing, habitation, furnish- 
 ings, labor, repose, recreation, amusement, associates, literature 
 and moral purposes to be accomplished, affords an illimit- 
 able field for selection of activities. One may freely follow the 
 dictates of his own tastes and inclinations wherever full lib- 
 erty of action is permissible. 
 
 Parental Authority 
 
 Whatever the social state, from the lowest savages to the 
 most cultured nations, parental authority over young children 
 is recognized everywhere. The parental relation is established 
 by the divine law of reproduction. Among the most degraded 
 
INTRODUCTION 9 
 
 savages the relation of the mother to her child is obvious, 
 while that of the father is often obscure or wholly unknown. 
 All the burdens connected with rearing the young are borne 
 by the mothers, who are often enslaved and oppressed by the 
 males with whom they come in contact. The first well defined 
 step in the advancement of civilization is the establishment of 
 family relations with fathers recognizing definite relations to 
 their wives and children. As society improves, the purity and 
 strength of domestic ties increase. The happiness of each 
 person and the welfare of the state are dependent everywhere 
 on the measure of love, unselfishness and devotion to duty 
 prevailing in the homes. To rear and protect their offspring, 
 parents must direct, restrain and instruct them. The ruler- 
 ship is arbitrary in the sense that the parent acts according 
 to circumstances on his own judgment and without restraint 
 from fixed rules. The protection of the child from mistreat- 
 ment lies in the love of the parent, who finds joy in the 
 comfort and happiness of the child and pain in its suffering. 
 While anger and hatred are sometimes exhibited by par- 
 ents, pity and love almost invariably temper the blows and 
 quickly restore the bond of sympathy. No other shield against 
 harm could possibly be found of anything like the strength 
 and efficiency of parental love. While parents have full 
 power to direct and restrain, they must of necessity accord to 
 their children an ever increasing measure of liberty of action 
 commensurate with their expanding strength and mental 
 powers. Lessons in self-reliance are necessary and may be 
 taught to the very young with advantage. It is often better 
 to let the little child suffer the punishment nature imposes for 
 its act than to restrain it. The pain caused by heat and cold 
 can only be clearly understood by experiencing it. Pain is a 
 sentinel that warns of immediate danger, and through some 
 pain the child must learn what to shun. What dangers and 
 sufferings the child should be subjected to must depend in 
 great measure on the care and instruction the parents can give 
 it. The child has its rights and is entitled to its due measure 
 of liberty. Of the limitations of these the parents of necessity 
 must judge from time to time, till the capacity of the child to 
 
10 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 govern himself is approximately equal to that of the parent 
 to govern him. Nature fails to indicate a definite size or age 
 at which this capacity first comes into existence. In Rome 
 the power of the father over his son continued throughout life 
 and over his daughter so long as she remained under his hand, 
 that is till she married and was transferred to the family of 
 her husband. The patriarchal system was a very natural de- 
 \elopment in those parts of Asia which were inhabited by a 
 settled population, living under peaceful conditions and sup- 
 porting themselves from agriculture or pastoral pursuits. The 
 father of the family was the natural head of it, and the family 
 included grandchildren, as well as children, and all other 
 members of the household. Polygamy in places greatly ex- 
 tended the membership of the family and made the head of it 
 a ruler over a community. To people reared under such con- 
 ditions a paternal government would appear to be the only 
 natural one. Among savage tribes like the American Indians 
 and the lower Africans frequent wars disrupted families. 
 The leadership of war parties was taken by the strong and 
 vigorous young men, and their feats in arms gave them in- 
 fluence in the councils of the tribe. The elders were listened 
 to in council, but lacked the requisite strength and endurance 
 for commanding war parties. The organization of such war- 
 like tribes was democratic, and combinations of the Indian 
 tribes mostly took the form of confederacies. 
 
 In the Asiatic monarchies the king assumed authority over 
 all the people similar to that exercised by the father over his 
 family. This power was arbitrary and without limitation. 
 The theory of such a government is false, because the love, 
 which is such an active and constant monitor in the home and 
 furnishes such a safeguard against oppression, is wanting in 
 the kingdom. The love of even the best of kings for their 
 subjects is largely theoretical, and in the nature of things 
 cannot be the same in quality as that of the father for his 
 own family. The restraining force being absent, tyranny of 
 course results. In a populous state warm sympathy for and 
 full appreciation of the peculiarities of each citizen by the 
 sovereign is impossible. 
 
INTRODUCTION ii 
 
 Public Regulation of Private Morals 
 Ought the state to concern itself with private morals? That 
 the state, which is but the aggregate of all the people in it, 
 is deeply interested in the morals of every private person in 
 it is clear, but that the public can interfere with the conduct 
 of a person which concerns him alone with advantage either 
 to him or to the state is not so evident. The Greeks deemed 
 the culture of physical strength and beauty of form a matter 
 of public concern as well as mental and moral training. The 
 code of Manu deals minutely with many habits of body and 
 mind and private acts affecting the soul, and prescribes pen- 
 ances and expiations for infractions of its rules. It seeks to 
 direct the soul in its struggle to gain mastery over the body 
 and all evil propensities of body and mind. Religion and 
 education are the forces employed to guard against all secret 
 violations of its commands. From early youth the people 
 are taught that the law is self-enforcing and that every in- 
 fraction of it is followed by certain and adequate punishment. 
 In China mourning for the dead is deemed a matter of prime 
 importance, and is enforced in the prescribed form under 
 severe penalties. While the Book of Rites deals mainly with 
 forms of intercourse between different persons, it also en- 
 joins many observances affecting the individual alone. Mo- 
 hammed strictly commanded ablutions, the morning and 
 evening prayer, and other personal observances tending to 
 cleanliness and health as well as requiring the observance of 
 religious forms. The Church of Rome also takes cognizance 
 of private morals and requires confession of secret sins and 
 imposes penances for the expiation of them. Other Christian 
 churches also deal with secret acts affecting the actor alone. 
 The prevailing doctrine in America and the more advanced 
 states of Europe is that the citizen is accountable to himself 
 and the Supreme Being only for his private morals and care 
 of his personal welfare. This doctrine is adopted both on the 
 ground of rightful liberty and of the inexpediency of state 
 regulation of purely personal concerns. It must not be in- 
 ferred however that this non-interference by the government 
 
12 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 indicates indifference on the subject, or an entire lack of 
 public influence in the direction of the best private morality. 
 Through the public schools educational influences, potent and 
 far-reaching, are brought to bear. By encouragement to 
 acquire knowledge, to love truth and form and follow high 
 ideals, the state leads rather than drives to purity of private 
 morals. 
 
 Public Regulation of the Family 
 
 Should the state undertake to regulate and iriiprove the re- 
 lation of members of the family to each other? That these 
 are of the highest interest to the public does not admit of 
 doubt. The citizens constituting the state are reared in the 
 homes and started in life with such opinions, habits and pur- 
 poses as home influences have produced. Vicious and im- 
 moral parents usually rear children with similar character. 
 On the other hand lofty purposes and upright conduct are 
 best promoted Dy the lessons of the domestic fireside. From 
 the home atmosphere of love, devotion to the welfare of each 
 other and kindness toward all mankind radiate those warm 
 and vitalizing influences that stimulate the growth of all that 
 is good on earth. Viewing the importance of preventing the 
 propagation of evil and of encouraging the growth of virtue, 
 may the state safely leave the homes to be ruled as the mem- 
 bers of the household deem best? This presents' the practical 
 question, where can better influences be found than those 
 which spring spontaneously from matrimonial unions. The 
 state concerns itself with the foundation of the household by 
 marriage. Only in the lowest and most degraded tribes is 
 promiscuous sexual intercourse tolerated. Though polygamy 
 is lawful among more than two-thirds of the people of the 
 earth, there can be no doubt of the superior morality of the 
 union of the single pair. This is indicated by the near ap- 
 proximation in the numbers of each sex born into the world 
 and is recognized even in the countries where polygamy is 
 allowed, for in them monogamy is the rule and polygamy the 
 exception. A few tribes allow plurality of husbands, but this 
 system is regarded with almost universal disfavor. 
 
IXTRODUCTIOX 13 
 
 There is great diversity in marriage ceremonies, but these 
 are of relatively small concern. It is far more important to 
 determine who may intermarry. Restrictions preventing the 
 lower classes from intermarrying with the higher are most 
 marked in India, and are common with the princely houses of 
 Europe. These are designed to prevent the upper from being 
 contaminated w.ith the lower orders. 
 
 The family being established by lawful marriage its govern- 
 ment is usually left almost entirely to its own members. The 
 theory of domestic rulership varies from the patria potestas 
 of the Romans, with power of life and death over all mem- 
 bers of the household, including adult children and their 
 wives and their offspring, to that of equal rights of father 
 and mother over minor children and complete emancipation of 
 the children at the legal age of majority. The right to punish 
 children is universally conceded to parents, subject in ad- 
 vanced states to the limitation that the punishment must not 
 be cruel or excessive. When it is considered that the citizens 
 constituting the state are born and reared in these households, 
 the vast importance of domestic morals is apparent. If the 
 state can improve them by regulation it is desirable to do so, 
 but before the attempt is made it must be found that the 
 moral purposes of the state, as an organized acting force, are 
 better than those generally dominating in the homes. It 
 seems clear that this cannot be safely asserted, even in the 
 best governed states, but that the reverse is generally *true, 
 and that the impulses which advance public standards origi- 
 nate in the homes. This of course is most apparent in dem- 
 ocracies and republics, but domestic morals exert a profound 
 influence, even under the most despotic governments. In this 
 connection it must be noticed that there is as wide a difference 
 in the character of households as of persons. Virtue and all 
 noble impulses germinate in the homes, but so also does much 
 vice. Moral as well as physical qualities usually, though not 
 universally pass by inheritance from parent to child. The 
 ancient Spartans encouraged propagation by the strongest 
 and most perfect physical specimens, and exposed the defec- 
 tive infants. They however grossly underrated the factor of 
 
14 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 love and devotion of husband and wife to each other, so ab- 
 sokitely essential to the highest development of the moral 
 character of the offspring. Where husband and wife are 
 normally healthy physically and morally there is little or no 
 need of state interference with their domestic affairs, but 
 may not society interfere and protect itself from the conse- 
 quences of those unions that are productive of vicious and 
 defective children? Ought the criminal, the insane and the 
 imbecile to be allowed to marry and multiply their kind? No 
 intelligent stock-raiser allows the propagation of defectives 
 among his flocks and herds. He takes the utmost care to 
 eliminate them, and understands quite well how to improve 
 the breeds of horses, cattle, hogs and fowl. The wise farmer 
 carefully selects the seed for his fields, excluding every de- 
 fective kernel as far as practicable. Neither among domestic 
 animals nor field crops does he hope for good results from 
 bad seed. Why may not society exercise the same care and 
 intelligence with reference to the propagation of the human 
 race that it does over the lower animals? To answer this 
 question we have first to determine whether it is morally right 
 to protect future generations from criminals and defectives 
 by preventing their propagation; second, whether it is ex- 
 pedient to do so, and third, what system can be adopted and 
 what are the limitations of the rightful exercise of the power. 
 In a household which starts from a well mated, healthy 
 and 'congenial pair, perfect liberty to live lives of devotion 
 to each other and to their children is recognized as of the 
 highest value. So sensitive and delicate are the adjustments 
 of the affections that no one without the circle can fully ap- 
 preciate or understand them. All such pairs realize their 
 responsibility for their own welfare and shrink from all out- 
 side interference. The state generally recognizes its inability 
 to add to domestic happiness, and interferes only in those 
 cases where one or both parents have been grossly derelict in 
 duty or children are incorrigible. The moral right to do- 
 mestic privacy and freedom is generally conceded, and the 
 inexpediency of state interference with domestic relations 
 under normal conditions is recognized. 
 
INTRODUCTION 15 
 
 In the treatment of children parents act according to their 
 own dispositions and capacities and those of their children. 
 The uplifting force is love and devotion to their welfare. The 
 happiest homes are doubtless those where the parents are able 
 to lead their children in the right paths by reason; where all 
 good impulses are sympathetically encouraged and the ca- 
 pacity for self-restraint developed as early in life and as 
 rapidly as possible. Where force is resorted to it should al- 
 ways be as a temporary expedient to overcome resistance of 
 authority. Its educational value can be no more than to incul- 
 cate the lesson that resistance is futile, and it is therefore 
 necessary to make its use accomplish the desired result. It 
 may well be doubted whether beating, scolding or restraint of 
 liberty, inflicted merely as punishment for disregard of duty, 
 ever accomplishes a beneficial result. The problem is to 
 arouse the impulses that lead to right conduct. Blows excite 
 a spirit of resentment and angry words responding anger. 
 The. spirit manifested by the parent arouses its counterpart 
 in the child. Fear of punishment tends to cowardice, resort 
 to falsehood and deception to avoid the punishment, rather 
 than to stimulate a wish to do the things the parent will ap- 
 prove. The legitimate object of correction is improvement in 
 the child, and this can only come by stimulating good im- 
 pulses, convincing its reason, or awakening its perceptions 
 of the moral quality of the act or duty involved, or leading 
 it to see advantage or superior enjoyment in good conduct. 
 It is often assumed that very young children can be ruled only 
 by force. Adults are led by suggestion. The force of sug- 
 gestion is most potent to the infant. The incapacity of the 
 parents to lead by suggestion induces resort to force to drive 
 the child in the desired direction or punishment after the act 
 for misconduct. The primary need is that the parent be in- 
 structed in the art of governing children. 
 
 On no subject is the law more divergent than that of di- 
 vorce. Even among the states of the American Union there 
 is nothing like uniformity of rule on the subject. Theories 
 vary all the way from allowing divorce at the pleasure of 
 either party to denying it altogether, and the practices pre- 
 
i6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 vailing go nearly to these extremes. A decree of court is 
 required in all the states, but in many of them it may be ob- 
 tained for slight cause and under few restrictions. The He- 
 brew law allowed the husband to divorce his wife at will, 
 and Mohammed announced the same rule in substance. The 
 objections to divorce do not appear so serious where there 
 are no children of the union, but a child has claims on each 
 parent for love, care and protection, and a right to a home 
 with both father and mother in it, bound together by love. 
 Parents of little children cannot divide the home without vio- 
 lating the moral law. But when husband and wife find them- 
 selves utterly unable to live together in harmony, what is to 
 be done and what rule of public law can make adequate 
 provision for the case ? No decree of court or administrative 
 process has ever been discovered that can compel kindness and 
 afifection. The moral rules applicable to the conduct of the 
 parties are not difficult to perceive, but unless they voluntarily 
 follow them, no external force can compel them to do so. 
 By allowing a divorce the law sanctions the disruption of the 
 family, by denying it an innocent party may be doomed to 
 endure unbearable treatment. The obligation of the state to 
 provide as far as practicable against unsuitable marriages and 
 to make conditions as favorable to domestic happiness as 
 possible may call for attention to many matters now neglected. 
 The possibilities of improvements along these lines present a 
 field too wide to be covered in this brief review. 
 
 Crimes and Punishments 
 
 The primary domestic function of a government, recog- 
 nized in all ages in all countries is the preservation of order 
 and protection of the citizens from violence and wrong other 
 than such as the governing power and the sentiment of the 
 people tolerate. In the most primitive states violence to the 
 person is the prevailing form of crime, and retributive justice 
 usually takes the form of vengeance inflicted by the injured 
 party or his friends. For homicide the kinsman of the mur- 
 dered man may kill the murderer. In some states provision 
 has been made for the payment of blood money to appease 
 
INTRODUCTION 17 
 
 the avenger, and for places of refuge into which the avenger 
 may not follow. In the code of Hammurabi of Babylon, the 
 Jewish and other ancient codes the le.v talionis, wrong for 
 wrong, was the rule of punishment; for any injury a corre- 
 sponding injury to the wrong-doer. There is something in 
 this simple rule that seems to appeal to the sense of justice 
 of the child and of a great part of the grown people as well. 
 To return blow for blow, when attacked, and to kill an as- 
 sailant, when necessary to preserve one's own life is regarded 
 as justifiable in the most enlightened states. Self-preserva- 
 tion appears to be a natural right. Organized society goes 
 farther than this and after the danger is past, the culprit 
 overpowered and held securely, as a return and punishment 
 for the wrong done, inflicts a corresponding wrong on him. 
 In considering the general aspect of the administration of the 
 criminal law in Christian states the first question to be con- 
 sidered is, is it morally right in principle, second, is it the 
 most expedient to promote the general welfare. Writers on 
 political science are unable to agree on the theory of punish- 
 ments. The primitive idea is to compensate crime with suf- 
 fering, and deter the commission of like offenses by fear 
 of like punishment. This view is still widely entertained. 
 Another is that the state takes such measures as appear neces- 
 sary to protect society from a repetition of the offense, ab- 
 staining from merely vindictive punishments. A third is that 
 society owes a duty to the culprit, and should aid him in 
 every way to overcome his unsocial propensities; that the 
 state has no moral right to inflict injury or pain on any 
 human being for the mere purpose of punishment for any 
 act or conduct ; that good will toward the culprit must prevail 
 in his treatment, and his welfare and reformation be prime 
 considerations. That the state has the moral right to do 
 whatever is necessary to protect the people when the criminal 
 openly violates the rights of others and forcibly resists the 
 rightful exercise of private rights or public authority, and 
 that he must be left in danger of injury while the struggle 
 continues and cannot claim protection from the public against 
 the immediate consequences of his own acts, appear evident. 
 
i8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 But when the power of resistance of the criminal is overcome, 
 what measure of duty does the state owe him? It cannot 
 then do him harm on the plea of immediate necessity. Can 
 there be a defenseless human being wholly without the pale 
 of governmental care? May the state assume a permanently 
 hostile attitude toward criminals as men, or is it morally 
 bound to have the same concern for those who, because of 
 innate defects or unfavorable environment, have committed 
 crime, that it has for normal humanity? It is apparent that 
 the infliction of the death penalty is not on the theory of 
 conferring a benefit on the criminal. Confinement in jails and 
 penitentiaries under needlessly rigorous conditions rarely has 
 any tendency to reform, but on the contrary stimulates the 
 study of crime, induces hateful and revengeful feelings, and 
 at the end of the term turns out a more expert and hardened 
 criminal. The view generally entertained is that the system 
 followed tends to protect society from further wrongs by the 
 criminal and also to deter others from ilke offenses by the fear 
 of like punishment. So far as the criminal's own conduct 
 is concerned experience abundantly proves that the protection 
 of society ends with his confinement. Unless he goes out with 
 better social purposes than he had when he went in, the public 
 purpose has not been accomplished. It is at least doubtful 
 whether cruelty has any tendency to convince him of the im- 
 morality of the act for which he is punished. He will, how- 
 ever, readily perceive the immorality of the excessive cruelty 
 to himself, and hate those who inflict it on him. The state 
 being responsible for his confinement; he quite naturally at- 
 tributes all his suffering to the public and feels that society 
 in general is his enemy. To put him out into society with 
 such feelings is almost equivalent to an invitation to recom- 
 pense himself as best he can at the expense of society for the 
 wrongs done him. So far as the tendency to deter others 
 from like offenses is concerned, severity of treatment in con- 
 finement can have no effect unless known to the persons whose 
 conduct it is desired to influence. This could only become 
 generally effective by making the barbarities practiced gen- 
 erally known, which of course the state and the prison offi- 
 cials would be unwilling to do. 
 
IXTRODUCTIOX 19 
 
 The researches of modern criminologists disclose the ex- 
 treme crudity of the penal codes of Europe and America, 
 which yet appear far better than the ancient lex talionis or 
 the Asiatic codes of modern times. Malicious murder, delib- 
 erately committed, always produces a profound sensation of 
 horror, usually accompanied by a general desire for speedy 
 vengence on the murderer. Of such murders many are in- 
 duced by a desire of revenge for some real or fancied injury. 
 These are seldom if ever committed under normal mental 
 conditions, for the normal state of the human mind is one of 
 either indifference or good will toward others. The misan- 
 thrope is such because he is abnormal from birth or made so 
 by subsequent influences. The normal healthy person desires 
 the welfare of others, and it is because of this general feeling 
 that the community is shocked when a murder is committed. 
 If all or a majority were misanthropes, they would feel 
 pleasure rather than pain at the destruction of a human life 
 and applaud rather than condemn the act of the murderer. 
 The law now prohibits the friends and relatives of the mur- 
 dered man from killing the murderer under the natural 
 promptings of anger and resentment caused by the deed; but 
 after trial and conviction, it requires a public officer, having 
 no feeling in the case different from that of the general public, 
 to put the murderer to death, deliberately, intentionally, and at 
 a time and place appointed by the court in accordance with 
 the law. In a large part of the cases the general summing up 
 of the matter is that the murderer has taken a human life to 
 gratify his private desire for vengeance, and the public has 
 taken his life to gratify a general desire of the people for 
 vengeance. Hatred moved the murderer to commit the deed, 
 and hatred of the crime, carried on to hatred of the human 
 being who committed it, induces the public to execute the 
 murderer. Not only is the public act similar to the private 
 crime, but the motive inducing it is essentially the same. In 
 morals then the punishment is wrongful as well as the crime. 
 
 One of the cardinal doctrines of the criminal law is that 
 the defendant must be tried for the particular offense with 
 which he stands charged, and the inquiry be strictly limited 
 
20 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 to his guilt or innocence of that offense. It is not a century 
 since people were executed in England for small larcenies and 
 other minor offenses. The extreme penalty of death was in- 
 flicted for the single act without reference to the general 
 character and conduct of the culprit, or to his environment. 
 It is apparent that organized society has no greater moral 
 right to harm a citizen merely to gratify the general desire 
 for vengeance than a private person has. 
 
 The whole system of harsh punishments rests on views of 
 expediency for its justification. It is doubtless true that some 
 people are deterred from crime by fear of punishment, but 
 it is equally true that criminals usually rely on concealment 
 of their crimes and escaping the punishment, whatever its 
 severity. The moral tone of any state that punishes harshly 
 is necessarily low. Reports of the hangings of criminals 
 shock the finer sensibilities and teach lessons of hatred and 
 disregard for human life. If the state is cruel and merciless 
 why may not the private citizen be so too? The criminal in 
 fact seldom weighs the punishment against the crime, He 
 always expects to avoid conviction and escape the penalty, 
 whatever it may be. Fines and forfeitures may deter from, 
 conduct having no moral turpitude, but prohibited by law, but 
 have Httle influence on hardened criminals. The best justifi- 
 cation that can be found for vindicitive punishments is that 
 the state has not suflicient intelligence and moral force to find 
 better means for the execution of its laws. If laws prescribe 
 punishment for their infraction and no other means of com- 
 pelling obedience to them, then the punishment must be 
 administered or the law is without force. The general senti- 
 ment of mankind is strongly in favor of law enforcement, so 
 vindictive punishments continue. 
 
 Can expedients be found for the prevention of crime and 
 the protection of society without the violation of the moral 
 law by the state itself? Manifestly this question must be 
 answered in the affirmative, yet perhaps no person is capable 
 of giving a full and clear statement of the expedients which 
 would fully accomplish the object. Parents find it necessary 
 to study the peculiarities of their children and to adapt their 
 
IXTRODUCTION 21 
 
 corrections to these peculiarities. This however is of minor 
 importance, for the secret of success in governing the young 
 hes in earnest loving care, which instructs and leads the child 
 to act for its own best interests and greatest joy, which gives 
 liberty to choose where the question is only of expediency or 
 taste, which makes clear the consequences of wrong-doing, 
 not in arbitrary human punishment, but as ensuing naturally 
 and necessarily from the misconduct itself. It is by leading 
 the child to a clear understanding of the advantages of good 
 conduct, and by instilling lofty sentiments of virtue, truth- 
 fulness and kindliness, coupled with the opportunity to realize 
 in practice the truth of the instruction, that strong characters 
 are formed. Mere abstract teachings may not be, and usually 
 are not, comprehended. The child must be led in the right 
 paths and restrained from going in the wrong ones. At no 
 time and under no circumstances is it permissible for the 
 parent to exhibit or feel hatred toward the child. Love at- 
 tracts, hatred repels. No person can by any possibility ex- 
 ercise a beneficial influence under the impulse of hatred. 
 Neither cruel beatings nor weak indulgence in wrong-doing 
 is to be tolerated. The parent must maintain a close bond 
 of interest in the doings of the child, encouraging all good 
 deeds, and pointing out the evil and showing why and w^here- 
 in it is wrong. Children instinctively rely on parental in- 
 struction, if parents are truthful and sincere, and delight in 
 their sympathy and approbation. Knowledge that an act is 
 condemned by parents who are habitually kind and sympa- 
 thetic is usually sufficient to prevent its repetition. To re- 
 strain misconduct and compel the performance of duty the 
 use of physical force is sometimes necessary; but when used 
 it should always be made manifest that it is justly used for 
 good ends. Many parents lack moral force and are unable 
 to control their own passions and weaknesses. The children 
 must then sufifer accordingly. In such cases whence is the 
 elevating impulse to emanate? Usually and mainly from the 
 love of the parent for the child. 
 
 To society the correction of its weak immoral and vicious 
 members presents the same task but in a different form. The 
 
22 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 state undertakes to protect each of its citizens against the 
 violence and aggression of others. Most monarchical gov- 
 ernments have been based on the principle of paternal author- 
 ity in the ruler over all the people. Unfortunately the exercise 
 of paternal power by a ruler over great numbers of people 
 lacks the sympathetic element w^hich emanates from the par- 
 ental relation. The king has a great many bad children whom 
 he proceeds to punish. He knows of their vices only. These 
 he hates and carries the hatred on to the possessors of them. 
 He punishes in a spirit of vengeance and harshly. From the 
 bamboo to the headsman's axe the purpose is to extirpate crime 
 and inspire fear in others of like rigor for like offenses. To 
 perform the service of administering the punishment men are 
 chosen who are not greatly shocked at exhibitions of cruelty, 
 and even delight in it. Though instances of compassion for 
 criminals are not wanting in Christian countries, and at times 
 morbid sympathy is exhibited, the general spirit is all too 
 similar to that in despotic governments. 
 
 To approach the consideration of crime with a feeling of 
 genuine desire for the welfare of the criminal as well as of 
 society may be beyond the stage of morality generally pre- 
 vailing, yet it is not too soon to perceive and declare the true 
 principles applicable to the subject. Everyone who has had 
 much experience with criminals knows that practically all of 
 them have virtues and are susceptible to friendly attachments 
 as well as other people. They are usually specialists in crime. 
 The homicide may be truthful and scrupulously honest in the 
 payment of debts and performance of contracts. His crime is 
 generally due to some abnormal emotion. It is impossible to 
 draw a clear line of demarkation between irresponsible in- 
 sanity and responsible passion. The legal rule that the de- 
 fendant is responsible for his act if he knew at the time of 
 committing it that it was wrongful, even though he was 
 powerless to master his passion, is harsh when the purpose of 
 the law is merely to measure out a given quantity of punish- 
 ment. The forger, the pickpocket, the defaulter or the per- 
 jurer, may have as little inclination to do bodily harm to 
 another as the most exemplary citizen. The robber and the 
 
IXTRODUCTIOX 23 
 
 horsethief almost invariably have generous impulses and de- 
 voted friends to whom they are strongly attached. The per- 
 jurer may have no other prominent vice, and may have 
 friends whom he does not deceive. Crime may be committed 
 in accordance with a well defined inclination to a particular 
 class of offenses, or under stress of circumstances which 
 produce a temporary moral depression. This is more ap- 
 parent in homicides than in other crimes, but offenses against 
 property are often the result of temporary external influences 
 which the culprit cannot resist. To weigh the conduct of a 
 person charged with crime fairly, the judge should be able 
 to see his act from his standpoint. This he is but rarely able 
 to do. Everybody departs more or less from the strict line 
 of moral rectitude. The Chinese, more logically than the 
 Europeans, treat every failure to perform a duty or obliga- 
 tion as an offense to be corrected, and grade punishments 
 according to the magnitude of the wrong done and all the cir- 
 cumstances connected with the offense. They are however 
 far less sympathetic in their treatment of offenders than 
 Americans. 
 
 It is now quite well understood by criminologists that a 
 single offense may be committed by one who is not necessarily 
 starting on a career of crime, but may completely overcome his 
 criminal inclinations; that it is necessary to know the char- 
 acter and environments of a convict in order to understand 
 how he should be treated with a view to his reformation, and 
 that men are made better by sympathy and encouragement in 
 doing what is right and useful, rather than by harsh punish- 
 ments. Many crimes are directly attributable to abnormal 
 and diseased conditions of the body or the brain. Some of 
 these can be speedily and certainly cured by surgical and medi- 
 cal treatment. Instead of burning or hanging the humane 
 and logical punishment of rape would be castration, which 
 would free the culprit from all further impulse to commit 
 such a crime. The same operation might be performed with 
 great advantage on some of the imbecile, insane and crimi- 
 nals of other sorts. Imbeciles who are a public charge cer- 
 tainly ought not to be allowed to propagate, nor the incurable 
 
24 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 insane or confirmed criminal. This like every other treatment 
 of unfortunates should be done in a spirit of kindness, and 
 for the purpose of benefiting rather than injuring them. In 
 many states laws are now in force prohibiting the marriage of 
 members of these classes, but such laws are by no means a 
 full protection to society. In many cases it is necessary to 
 take more effective measures. The exercise of such power is 
 not necessarily liable to greater abuse than of others now 
 commonly employed. Whatever measures are taken to cure 
 mental and moral diseases should be prompted by the same 
 motives as those which prompt surgical operations or medical 
 treatment for normal people. All these unfortunate classes 
 are children of the state, and the state is responsible for their 
 welfare. 
 
 Opposed to the performance of its moral duty by the state 
 in the treatment of criminals and defectives are views of ex- 
 pediency. In apprehending and disarming criminals and luna- 
 tics it is often necessary to employ force and to do them bodily 
 harm, yet a resolute man can often make an arrest without 
 any injury, where another would have a serious conflict. It 
 is impossible for the state to always select the best possible 
 agents to do this work. So long as men are imperfect, they 
 will fall short of the best possible achievements in every line, 
 and a state, acting on the most humane and enlightened prin- 
 ciples and theories, will necessarily exhibit imperfections in 
 practice. It is of the utmost importance however that the 
 state free itself from every just charge of acting on the princi- 
 ple of hatred toward any class of its citizens. Charitable in- 
 stitutions, prompted by sympathy for unfortunate humanity, 
 are being rapidly multiplied. The elimination of all the bur- 
 densome classes by wise and just means is not an idle dream, 
 but an accomplishment which may be approximated in the 
 near future. 
 
 The code of Hammurabi of Babylon exhibits the spirit of 
 hatred toward criminals. Of all punishments, maiming, so 
 frequently imposed by this code, is the most impolitic, for it 
 leaves society still burdened with the criminal after his power 
 to be useful has been diminished and his hatred for others 
 
IXTRODUCTIOX 25 
 
 stimulated. To put out an eye or cut off a hand or foot is a 
 most shocking exercise of cruelty, yet such punishments were 
 long recognized as just throughout Babylonia and Judea. 
 
 One of the most valuable ideas developed by Bentham in 
 his Morals and Legislation is that of the fecundity of various 
 impulses. Much of the cruelty and misery in the world has | 
 resulted from laws like those of Babylon, which constantly in- \ 
 stilled a lesson of hatred into the minds of the people. The / 
 propagation of sentiments of amity and sterilizing those of 
 enmity are matters of prime importance for the consideration 
 of legislators in dealing with crime, and should not be left in 
 the sole care of moralists and religious teachers. It is evident 
 that no state ever has or ever can weigh out and impose on 
 each culprit a measure of punishment nicely balancing his 
 offense. The multiplicity of considerations to be taken into 
 account in each case is so great that adequate judicial machin- 
 ery cannot be constructed for the work. Restraints seem nec- 
 essary, and the imposition of them must be in accordance with 
 law by public agents, but the deeper and stronger purpose is 
 to induce good conduct. Wars, the execution of criminals, \ 
 torture and all vindicitive punishments propagate the spirit of I 
 hatred and induce criminal conduct. 
 
 National Crimes 
 
 The strong nations are subject only to self-imposed checks, 
 prompted by sentiments of justice, selfish interest, fear or 
 other considerations influencing their conduct. There is no 
 superior force to restrain or punish them. That great nations 
 commit great crimes is apparent. The example of an aggres- 
 sive war teaches all the people of the nation a lesson of crime. 
 While the nation itself acts the part of a criminal how can it 
 hope to instruct its citizens in morality? An aggressive war 
 to take by force that which belongs to another is identical 
 in principle with the deed of the robber. The incidental 
 slaughter in battle corresponds exactly with the murders the 
 robber commits in getting his booty. Logically the state 
 should deny to itself utterly the right to use military force 
 against another except in self defense. The moral law ap- 
 
26 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 plies as well to nations as to persons. It is only by full recog- 
 nition of its binding force in all human relations that a state 
 can hope to deal successfully with its morally weak citizens. 
 Judicial settlement of international disputes in accordance 
 with fixed principles is indispensable to a complete scheme for 
 the elimination of crime. The false lessons inculcated by a 
 great war affect the moral tone of the people for generations. 
 The nation should be the great teacher and exemplar of mor- 
 ality. When it voluntarily goes to war it becomes a great 
 teacher of crime. 
 
 Legislative Morality 
 
 The functions exercised by a state are divided into legisla- 
 tive, judicial and executive. Briefly stated, the legislature 
 declares the law, the judiciary interprets it and determines 
 its application and the executive carries it into effect. It 
 would seem that the business of a law making body would 
 naturally be to formulate rules of conduct and of rights ex- 
 pressive of the moral law. The most casual examination of 
 the work of any such body will disclose the fact that consider- 
 ations of expediency largely predominate, and that the pure 
 moral law is generally regarded as too good for practical use 
 in a world where men are constantly seeking personal ad- 
 vantage by the use of more or less immoral expedients. In 
 defining crimes the legislature gives names to certain classes 
 of immoral acts. The list is brief when compared with one 
 including all the immoral conduct of which people are guilty, 
 but it includes those most vicious and common. Concerning 
 some vices there is a tendency for public opinion to ebb and 
 flow, and for legislatures to adopt extreme measures of re- 
 pression at one time and at another to indulge the utmost 
 toleration. Thus drunkenness, gambling, prostitution, liquor 
 selling, usury taking and like offenses are sometimes visited 
 with severe penalties, and at others with none. Heresy, witch- 
 craft and other fictitious crimes are at times visited with 
 death by torture and at others laughed at as absurd. Resist- 
 ance of an oppressive ruler is treason when unsuccessful and 
 patriotic revolution when it results in the expulsion of a 
 
INTRODUCTION 2-7 
 
 tyrant. Smuggling goods is an offense or not according to 
 the prevailing policy of the government with reference to 
 revenue and foreign trade. It involves no moral wrong when 
 the trade is in useful articles and the parties to the transaction 
 are mutually benefited, except as there may be a moral ob- 
 ligation to pay a tax on the goods. 
 
 On the other hand there are moral wrongs in great number 
 which European and American states never attempt to punish 
 as crimes. It is morally wrong for an able bodied man to 
 live by begging instead of useful labor. This is sometimes 
 punished though the beggar gets only the most meagre subsis- 
 tence from the public. It is a far greater moral wrong for a 
 strong healthy intellectual man to live in idleness and luxury 
 on the labors of others, yet those who have means to do so 
 are not only never punished, but are usually looked up to as 
 of a superior class. It is always wrong to refuse to pay a 
 just debt when able to do so, but it is not classed as a crime. 
 It is a moral wrong to withhold from another anything that 
 of right belongs to him, yet in many cases it is not regarded 
 as a crime. The Chinese more logically classify all wrongful 
 acts and failures to perform duties as punishable offenses. It 
 is morally wrong to fail in any duty to aid another, yet rarely 
 punishable. It is morally wrong to refuse to do a useful part 
 in life and exchange service for service and kindness for kind- 
 ness, yet it is not and seldom could be a punishable crime. 
 
 From the instances given it is apparent that a legislative 
 body in selecting offenses to be punished is governed by views 
 of necessity and expediency. It is utterly impracticable to 
 have courts sitting in judgment on every trifling deviation 
 from strict moral rectitude. Such trials would be an in- 
 tolerable burden, productive of great harm and little or no 
 good. The legislature therefore selects such crimes as ap- 
 pear most dangerous to society and imposes penalties for 
 their commission. In dealing with these it is a matter of 
 great difliculty for the state to keep within moral limits. 
 With the abolition of whipping posts, pillories and the death 
 penalty and the adoption of more humane treatment of pris- 
 oners in places of confinement, there are evidences of a grow^- 
 
28 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ing conviction that the state has no moral right to do evil to 
 a criminal to gratify public hatred of the crime. The true 
 theory of the relation of the state to criminals is that it is one 
 of guardianship and similar to that assumed in the care of 
 lunatics. Its duty is to protect the public against their vio- 
 lence and cunning, and at the same time promote the welfare 
 of the culprit. 
 
 In dealing with the rules governing what are termed civil 
 cases the legislature has a far wider field to cover. Crime is 
 abnormal and exceptional, but in highly civilized states the 
 people are interdependent, and the rules governing their deal- 
 ings and relations have more or less effect on all. It would 
 seem to be the business of the law-making power to elaborate 
 and arrange in logical order all rules which are to be ob- 
 served as law. It would also appear to be its duty to make 
 every rule conform to the moral law; in fact to make rules 
 which are merely expressive of the moral law applicable to 
 each different class of relations and transactions. Neither 
 of these things, however, has ever yet been accomplished. 
 Nothing can better illustrate human selfishness and fallibility 
 than the deficiencies and imperfections of the great codes 
 which have been promulgated in different ages and parts of 
 the earth. Cases continually arise for which there is no pro- 
 vision, and doubts as to what rule governs under a given set 
 of circumstances perplex the judges. All great codes have 
 been in main compilations of the rules already observed in the 
 courts, and have naturally embodied whatever unjust and 
 immoral system had been before firmly established. Thus 
 the Code of Manu, so exalted in much of its principles, is 
 based on classifications of the people designed to maintain the 
 supremacy of the priestly and military orders; The code of 
 Justinian merely continued the laws concerning slavery, per- 
 sonal relations and property rights with slight modifications, 
 none of which reached their fundamental immoralities, and 
 the Chinese code adheres to the theory of the inferiority of 
 women and cruel punishments for all serious derelictions. 
 
 The absence of any general codification of the law in Eng- 
 lish speaking countries may be accounted for in part by the 
 
INTRODUCTION 29 
 
 greater complexity of industrial and commercial affairs, the 
 rapid substitution of new methods for old, and the adherence 
 to judicial precedents to supplement the statutory law. The 
 difficulty in bringing a large representative body like the Brit- 
 ish Parliament or an American legislature to an agreement 
 on so many and such varied topics as would necessarily be 
 included in a code covering the whole field of civil law is too 
 great to allow a complete codification at one time and as a 
 single act. Codification by topics is more feasible, and some 
 progress has been made in this way in several states. The 
 rapid multiplication of judicial precedents, the disposition of 
 some courts to draw nice and even fanciful distinctions in 
 order to reach a desired result, the breaking down of whole- 
 some rules by the multiplication of exceptions to them, and 
 the growing impracticability of administering substantial jus- 
 tice by the system now followed, call for some form of more 
 concise and authoritative statement of the law. The multipli- 
 cation and diversification of business enterprises and combi- 
 nations have complicated the law of agency, employer and 
 employee, corporations and kindred topics. Continuing de- 
 velopment will doubtless cause many more rapid changes in 
 methods. The law governing the new relations thus developed 
 cannot lead, but must necessarily follow the new conditions. 
 Codification for the future can only cover the field of past 
 and existing needs ; it cannot adequately provide for the 
 unknown. 
 
 The principal functions ordinarily exercised by all legisla- 
 tive bodies relate to the creation of offices, defining their 
 functions, designating the manner of filling them, levying 
 taxes, expending public money and regulating the various 
 branches and departments of the governmental system. In 
 exercising these functions they work in the true field of ex- 
 pediency. There is nothing in the moral law indicating the 
 number of officers needed by a state, the duties properly at- 
 tributable to each, the length of time each should serve or the 
 mode of their selection. It does, however, require that each 
 public servant should render a just equivalent in service for 
 the salary he receives, and impose restrictions on his invasion 
 
30 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of the rights .of the people. In devising and constructing the 
 machinery of government the law-making power has the task 
 of providing governmental agencies to restrain the people 
 from doing wrong and to compel them to do right. In this 
 it undertakes to exert a moral force superior to that which 
 directs the conduct of such of its citizens as it is designed to 
 regulate. All experience proves that the men chosen for offi- 
 cial positions, no matter what the form of the government, 
 are not distinctly superior in moral purposes to the average 
 citizen. They are however superior to the classes most need- 
 ing restraint and supervision. By carefully defining their 
 duties and strictly limiting their powers the officers are re- 
 strained from misconduct and instructed in the performance 
 of their duties. 
 
 The law-making power constructs the judicial system, es- 
 tablishes courts, provides for the selection of judges, fixes 
 their compensation and tenure of office, prescribes rules of 
 procedure and is responsible for the principles of law admin- 
 istered in them. It also outlines the organization of all the 
 executive branches of the government, fixes the number and 
 prescribes the duties of each class of officials and provides 
 compensation for their services. It authorizes the organiza- 
 tion and equipment of armies and imposes taxes to maintain 
 them. In doing each of these things it is evident that the 
 end to be accomplished should be a moral one, but in devising 
 means to accomplish it, the legislature necessarily chooses 
 such instruments and methods as it deems best adapted to the 
 end. Considerations of expediency are controlling. If these 
 were necessarily considerations of public expediency, the state 
 would be in no danger except from errors of judgment, but 
 unfortunately personal and party expediency are quite too 
 often controlling considerations. Where autocratic power is 
 given to one man, his ambitions and personal interests usually 
 outweigh the public welfare. If he has the instincts of a 
 robber, he makes war on his neighbors for his own aggran- 
 dizement, and leads his subjects out to be maimed and slaugh- 
 tered in the effort to kill others. Where the law-making 
 bodies are composed of many members, factional and party 
 
INTRODUCTION 31 
 
 expediency often leads astray. An exchange of personal 
 favors between members at the public expense is also a most 
 fruitful source of bad legislation. There is a never failing 
 tendency to multiply offices and increase salaries to the ut- 
 most limit that the people will bear. This is true of all forms 
 of government, though most extreme in the most despotic. 
 It results everywhere from mere motives of personal ex- 
 pediency. 
 
 There is a further question in which no moral consideration 
 is directly involved, yet concerning which there is much strife 
 and hot contention. What business functions and useful en- 
 terprises ought the state to conduct? With the increasing 
 disposition and capacity of men to combine and cooperate in 
 enterprises calling for concert of action, industries have de- 
 veloped employing great numbers of men. Railroad, tele- 
 graph, mining, manufacturing and trading companies, deal 
 with so many people that their management becomes a mat- 
 ter of public concern. It is demonstrated that they can be 
 operated successfully by private corporations acting through 
 their own agents and officials and under their private laws. 
 It is also shown by experience that some of them can be suc- 
 cessfully operated by public agents. The question then is pri- 
 marily one of expediency. Yet expediency deals with the 
 selection of means to accomplish ends, and we often find pub- 
 lic expediency and private in sharp conflict. Whenever it 
 can be truthfully said that the public is as well served by a 
 private owner or corporation as by a public agency, it would 
 seem to accord with the principle of liberty to leave the busi- 
 ness in private hands. But where the governing agency of a 
 private corporation uses its power to enrich a few at the 
 expense of the many, or fails to give as good service as its 
 revenues warrant, it would appear necessary to either effectu- 
 ally supervise or assume the management of the business. 
 Supervision necessitates two sets of managers, one for the 
 private owner and the other for the public. There is a marked 
 trend in the direction of the assumption by governments of 
 useful business functions, but no modern state has ever ap- 
 proximated the business organization of ancient Peru, which 
 
32 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 singularly affords a model of state ownership of the ultimate 
 title to all the land, mines, fisheries, flocks and herds, as well 
 as the roads and public buildings. 
 
 In determining the expediency of assuming business func- 
 tions by the state the capacities of the men whom it can and 
 will place in public office and their moral purposes are factors 
 of prime importance. No mere theory of organization, how- 
 ever attractive, can make good a lack of capacity for the 
 duties imposed on public agents. Much may be done by those 
 charged with the general supervision of grant enterprises to 
 systematize and simplify the work of each subordinate, and 
 by careful instruction in their respective parts to qualify men 
 of moderate capacity for their work. This is equally true 
 under public and private management. The great corpora- 
 tions exhibit great inequality in the apportionment of the 
 benefit of the combined efforts of many in the conduct of 
 their business. These inequalities are based in part on the 
 value of the effort contributed, but much more on positions 
 of advantage held by some, due to the government of the 
 affairs of the corporation by a select few. This results from 
 the plan now generally followed of allowing a majority of 
 the stockholders to rule. It usually insures efficiency and 
 vigor of management, but at the expense of much injustice. 
 The Post Office, operated by the governments, is the greatest 
 and best business organization in the world, and is a model 
 for other lines. 
 
 The legislature makes provision for public schools, in all 
 the American and European states, with some few exceptions. 
 In assuming the function of educating the young in public 
 schools modern states have done more to elevate conceptions 
 of duty, standards of morality and efficiency in all lines of 
 activity than by any other means. Here direct public super- 
 vision has been shown to be vastly better than private direc- 
 tion. The Hindoos sought to insure the education of the 
 twice born classes by requiring the instruction of the youths 
 as a religious duty. The Chinese encouraged learning by 
 making it the avenue to public employment. Modern states 
 give instruction as a preparation for all the duties of life. 
 
INTRODUCTION 33 
 
 The Hindoos, the Mohammedans and many Christian states 
 regard the maintenance of the estabHshed religion and the 
 observance of reHgious forms and ceremonies as not only a 
 legitimate function of government, but one of prime im- 
 portance. The Chinese regard forms and ceremonies, mourn- 
 ings, costumes, kneelings, knockings and salutations of all 
 kinds as matters worthy of strict regulation by the state. It 
 is difficult to perceive that any moral question is involved in 
 religious ceremonial or the formalities of Chinese etiquette, 
 though education and the general consensus of opinion may 
 give them an artificial value hard to comprehend. 
 
 Except where limited by constitutional restrictions, as in 
 the United States, the legislature is free to select its fields of 
 activity, to choose the ends it will try to accomplish and the 
 means it will employ for its purposes. It may deal with mat- 
 ters affecting the welfare of the individual only, with those 
 relating to the intercourse of one with another, and with all 
 forms of organization and combination of men, and it neces- 
 sarily deals with the political organization. Viewing the 
 limitless field of possible activity and the varied impulses that 
 representatives from all parts of a great country bring to- 
 gether, it is not surprising that schemes in endless variety 
 are presented for consideration. As a condition precedent to 
 any improvement there must be a suggestion of something 
 new. On the other hand, in order to proceed sdfely, it is 
 necessary that a new rule of action, to be followed by many 
 or all, should be well understood by those it affects. So, much 
 discussion and consideration of new projects is indispensable. 
 The reformer, imbued with the great value of his scheme is 
 anxious to have it put into immediate operation, while the 
 conservative objects, inquires and hesitates till thoroughly con- 
 vinced that it is good. The friction caused by the ardor of 
 those who propose and the immobility of those who resist 
 often produces heat and sometimes conflagrations; yet the 
 best results seem to call for something of this process, fol- 
 lowed by a general agreement. Before any great change in 
 the order of things can be of full benefit, it is necessary to 
 prepare the public mind for it and educate the people to act 
 
34 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 in accordance with it. The French revolution clearly exhibits 
 the force of habit and education in continuing bad systems in 
 spite of sweeping reforms devised and put forth by the legis- 
 lative power. Men who had been long accustomed to obey 
 a master could not at once find prosperity in liberty. The 
 laborer, who has always performed tasks under a master for 
 wages, may be and often is incapable of conducting a business 
 of his own with any degree of success. He may utterly fail 
 to obtain the materials necessary for his employment at the 
 only work he knows how to do. The greatest human achieve- 
 ments requiring the combined efforts of many are only pos- 
 sible of accomplishment by specialization and division, of 
 labor. To each participant some part must be assigned which 
 he fully understands. There must be intelligent leadership, 
 causing all to move harmoniously with strength united and 
 not opposing the force of one to another. The distribution 
 of the profits resulting from a great enterprise may be most 
 unequal and unjust, so that those who furnish the capital or 
 direct the operations receive grossly excessive shares, yet if 
 the underpaid laborers are incapable of carrying on the busi- 
 ness at all without the capital or supervision, there may be no 
 other alternative but to continue in the service or starve. In 
 all attempts to substitute a just for an unjust system it is "in- 
 dispensable that those who are to be benefited be educated to 
 act according to the new plan. 
 
 In despotic countries every combination of the people not 
 directly authorized by the government is looked on with sus- 
 picion as likely to breed resistance of arbitrary power. In 
 the most advanced states the various forms of voluntary or- 
 ganization promoted by private citizens are almost innumer- 
 able. Their numbers and size bear evidence of the increasing 
 confidence of man in his fellows, as well as of growing 
 capacity for combined effort. The earliest charters in Eng- 
 land and the American colonies were granted by the crown or 
 act of Parliament or colonial legislature as a special favor. 
 Now corporations may be formed under general laws for 
 designated purposes, and in many states the only limitation of 
 purposes is that it be to carry on a lawful business or for 
 
INTRODUCTIOX 35 
 
 social, religious or charitable purposes. In recent years vast 
 fortunes have been accumulated by promoters and manipulat- 
 ors of corporations by more or less dishonest transactions in 
 their stocks and bonds. The unscrupulous men and the im- 
 morality of their methods have been concealed behind the 
 artificial structure of the corporation. The vast aggregation 
 of capital and combination of men under the control of the 
 managers of the great business corporations in the United 
 States have given great influence to them in political and 
 governmental affairs. All departments of the government 
 have been more or less tainted by their insidious and often 
 corrupt methods. One of the great problems now promi- 
 nently before the people is that of correcting and prohibiting 
 the abuses connected with these great business organizations 
 without impairing their usefulness. This cannot be done by 
 merely regulating the affairs of the corporation itself as an 
 entirety. It seems more important just now to regulate the 
 operations of the men who manipulate corporations and their 
 stock and bonds, and by indirection fleece the general public 
 and oppress the employees of the company. The immorality 
 lies in the acquisition of unearned fortunes by cunning and 
 fraud. Even when the people are fairly informed concerning 
 the evils to be remedied, the practical difficulties to be en- 
 countered in devising remedies to overcome the most power- 
 ful and wealthy combinations in the country are very great. 
 Inordinate private fortunes are unhealthy in their tendencies 
 and influence on the body politic. The simple and direct 
 method of dissipating them is by the use of the taxing power. 
 Legislatures deal with existing conditions. It is idle to 
 denounce penalties against crimes that no one commits, or 
 that are so rare as to be negligible. Laws affecting property 
 and contract rights must be adapted to needs either present 
 or plainly foreseen. Men differ widely in their views on the 
 abstract questions of ethics involved in the distribution of the 
 proceeds of enterprises to which many persons contribute in 
 various ways. One fundamental proposition seems to be 
 commonly overlooked. A just claim to wealth in excess of a 
 fair share of the face of the earth, its natural products and 
 
36 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the fruits of the toil of past generations, must be based on 
 the personal services of the claimant. This of course ex- 
 cludes from view the claims of the helpless and dependent, 
 and applies only to those able to do useful service. Service 
 meriting reward may be rendered in any useful form of 
 mental or physical activity, but it must be personal service of 
 the claimant. In morals there can be no such thing as vicar- 
 ious earnings. Personal merit affords the only possible basis 
 for a just claim of reward. The ways in which one may be 
 serviceable to his fellow men are numberless, and in the 
 multiplicity and complication of human affairs the value of 
 the service and the designation of the persons who ought to 
 give the compensation for it, are often so uncertain and ob- 
 scure that no definite rule can be announced. In this situation 
 the best that can be reasonably demanded is a fair approxi- 
 mation to a just and uniform rule. Yet in no country are 
 the laws based on a theory requiring personal merit as a basis 
 of property rights. In the United States unlimited land mo- 
 nopoly is allowed and protected. The only limitations on the 
 amount and kind of land over which one may exercise abso- 
 luate dominion are ability to purchase or otherwise acquire 
 title and liability to taxation and the exercise of the power of 
 eminent domain under which it may be purchased for strictly 
 public uses. In nearly or quite all civilized countries the title 
 to land and movables also passes by inheritance or will to 
 designated persons, wholly without regard to merit, needs, 
 amount and capacity or disposition to use properly. A small 
 inheritance tax is sometimes imposed, but this does not ma- 
 terially affect the general proposition. On the other hand a 
 very large part of the people have no land, no money to buy 
 it with and no capital of any kind. Their sole dependence 
 for subsistence is on employment by those who have land or 
 other capital for wages. For a dwelling place they are de- 
 pendent on the terms imposed by landlords and their ability 
 to get wages enough to satisfy their demands. These con- 
 ditions exist because the law allows them. Are the laws just 
 in these respects? Monopohes of coal, oil, gas, iron, copper 
 and other mineral products, and of water, waterpower, trans- 
 
INTRODUCTION 37 
 
 portation lines, means of transmitting intelligence, trade and 
 industry, all rest on a similar basis. The law and the power 
 of the state protects them. The courts confirm their titles and 
 enforce their contracts without regard to public interests. 
 Established legal theories and rules are followed without re- 
 gard to fundamental moral principles. Justice demands more 
 than that the destitute citizen shall have freedom to make such 
 contracts for his services as he can. It requires that it be 
 made possible for him to make just contracts through which 
 he can obtain the fair value of his services. Justice also de- 
 mands that the product of his service shall go to the one for 
 whose ultimate use it is performed without the addition of 
 any unmerited profit to the employer or exploiter. Monopoly 
 of every kind stands between the producing and consuming 
 classes and extorts that which it has not earned and does not 
 merit. The law-making power is responsible for the existence 
 of every form of monopoly. It actively promotes or passively 
 tolerates every vice that inheres in monopoly. In the final 
 analysis it will be found that every form of special privilege 
 and unjust advantage has its root in the law and endures 
 only because it is protected by the public force. The socialists 
 point out the injustice of the exploitation of labor by those 
 who control the capital. The remedy they propose is a com- 
 plete reorganization of society. One may readily concede the 
 soundness of their criticisms on the injustices of existing 
 systems without approving the expedients by which they pro- 
 pose to remedy them. It may be that progress toward con- 
 ditions of ideal justice can be made more rapidly by the use 
 of other expedients for which the people are better prepared 
 by custom and education. The single tax may tend to un- 
 dermine land monopoly, but will it prevent further exploita- 
 tion of labor? The value of expedients is and in the nature 
 of things must always be more or less experimental. The ulti- 
 mate moral purposes to be accomplished by the legislatures 
 will remain approximately constant. Experience abundantly 
 proves the inertia and resisting power of habit and the ex- 
 treme difficulty of successfully operating a new system for 
 which the multitude are unprepared. On the other hand, no 
 
38 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 matter what the form of government or plan of social organi- 
 zation, evils clearly defined and persistently pointed out by 
 those in a position to influence the governing body may always 
 be remedied without disrupting the bonds- of social order to 
 which the people are accustomed. Revolution, for which the 
 people are fully educated, may accomplish great reforms sud- 
 denly, but revolution for which the people are unprepared is 
 quite as likely to retard as to advance the cause of justice. 
 
 The forms in which unmerited revenues are now drawn 
 from accumulated wealth are mainly rent, interest and divi- 
 dends on corporate stocks. Rent and usury are old forms of 
 revenue and have been declaimed against from very early 
 times. It is only recently that corporate stocks have become 
 conspicuous. Numberless laws have been promulgated against 
 usury, varying in terms all the way from absolute prohibition 
 cf all interest to the allowance of all the parties agreed upon. 
 Rent has often been declaimed against as robbery. The de- 
 fect in the reasoning of those who challenge the rightfulness 
 of claims to interest and rent is mainly in the failure to go 
 back to the right starting point. The necessity for capital in 
 all business enterprises and the universal custom of giving 
 its owner compensation for its use show a general recognition 
 of the merits of economy and prudence in the accumulation 
 and preservation of property. The service of preserving the 
 grain after it is harvested is as useful as that of raising the 
 crop. He who performs this service is entitled to his reward. 
 Economy in use is a merit to be compensated with the savings. 
 But property unjustly acquired, or gained by accident of birth 
 or favor, affords no just basis for an income in any form, 
 except as the possessor earns it by his own efforts combined 
 with it as capital. 
 
 Unearned wealth, no matter how it may have been acquired, 
 is usually either soon squandered or invested in land, interest 
 bearing securities or corporate stocks. Modern exotic for- 
 tunes are all largely made up of such investments. The in- 
 comes of the owners derived from the rents, interest and 
 dividends produced from such investments is then unearned 
 tribute paid to the investors. The unjust burden may not 
 
INTRODUCTION 39 
 
 fall on the ones who make the final payments. It may and 
 often does happen that they in fact profit from holding an 
 intermediate position and that the real burden is passed on to 
 others. This may be illustrated by an investment made in 
 the bonds of a manufacturing company owned by a stock 
 gambler, who acquired his wealth by fraudulent dealings in 
 the stock market. The manufacturing company by use of 
 the capital in a business protected by the government or so 
 overgrown as to become a monopoly, may extort inordinate 
 profits from the general public consuming its products and 
 make profits on the borrowed capital largely in excess of the 
 interest paid, or by monopoly of the labor market may with- 
 hold from its employees revenue that justly should go to 
 them as wages. In such cases the burden of the interest is 
 passed on to third persons with the addition of the company's 
 extortions, and both borrower and lender gain unearned 
 revenue. Similarly a railroad company may extort excessive 
 income through its transportation monopoly or withhold fair 
 wages from its employees, and after paying interest on all 
 its invested capital, pay dividends on stocks for which nothing 
 was paid and which therefore represent no investment. The 
 unearned interest on unearned wealth, so invested and used, 
 is thus paid a prosperous company out of funds derived from 
 others. Similar illustrations might be made of the passing 
 on to third persons of the burdens of rent and dividends on 
 stocks. The farther the person who ultimately bears the un- 
 just burden is removed from the ulitmate beneficiary of it the 
 more the injustice is obscured and the greater the difficulty in 
 obtaining redress. The real burden in all such cases rests on 
 the consumer or the laborer or both. The vice does not in- 
 here in rent, interest or dividends as such, but in the lack of 
 moral basis for a demand of any payment in any form to the 
 beneficiary. It is. because the property from which they are 
 derived is an unjust acquisition rather than that rent, interest 
 and dividends are essentially unjust in their nature. 
 
 The inception of title to unearned wealth everywhere is 
 largely due to governmental favoritism, monopoly, speculative 
 operations in which there is an element of fraud, breach of 
 
40 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 confidence or extortion, gambling and trade operations having 
 gambling characteristics, and corporate favoritisms and 
 manipulations. Such gains are all clearly immoral, and if 
 full justice were practicable should be returned to the sources 
 from which they were derived. Great gains not infrequently 
 come from fortunate ventures in mining and legitimate trade 
 and manufacturing, and from great inventions. The point 
 at which such accumulations become unwholesome and detri- 
 mental to the public interest is not easy to define. Perhaps 
 it may safely be said that this point is not reached until there 
 is an element of monopoly or oppression attending the pos- 
 session. So long as the use made of them promotes the gen- 
 eral welfare there would seem to be no ground for public 
 interference beyond the imposition of taxes. Ownership of 
 land which the owner does not occupy or improve and for 
 which he merely takes ground rent, partakes of the nature of 
 monopoly. The universal need of an abiding place on the 
 face of the earth and of resort to its natural wealth for 
 subsistence renders land monopoly peculiarly oppressive. The 
 safety and permanence of investments in land make them at- 
 tractive to people having surplus means. Pride also is grati- 
 fied by the possession of large estates. These influences 
 operate everywhere and the extention of the power of the 
 wealthy by monopoly of the land goes on more rapidly in the 
 United States than in any other great country because the 
 conditions favor rapid accumulation of wealth and there is 
 full liberty to make unlimited investment of profits in land. 
 Monopoly of particular products and Hnes of business is more 
 noticeable and therefore more discussed, but it lacks the per- 
 manence and fundamental character of land monopoly. Mo- 
 nopoly of money and credits, while not impossible, is more 
 difficult of accomplishment. It is always -only partial and 
 temporary, but extremely disasterous in its effects. 
 
 It is manifest that if property rights were determined by 
 the rules of pure ethics, monopolistic extortion or any sort 
 of fraud or crime would confer no title. If the law-making 
 power were chargeable with the duty to make provision for 
 righting every wrong, it would be necessary to have inquiry 
 
IXTRODUCTIOX 41 
 
 made into the sources of title to all property acquired through 
 any such immoral means and make full restitution to all who 
 had been injured. While it is not to be expected that any 
 system of governmental control will in practice work out ideal 
 justice in every case, it would seem that in theory at least the 
 rules of law should cover the whole field of ethical principles. 
 The moral law also has its prohibitions and negations and 
 forbids the doing of positive wrongs. The moral law forbids 
 the legislature to promulgate any law the natural effect of 
 which is to produce unfair conditions for or unjust relations 
 between any of the people. Yet the history of the world is 
 full of instances in which the law itself has directly author- 
 ized the grossest possible oppression. Slavery has always 
 required the aid of the state in enforcing the dominion of 
 the masters. The state thus became fully responsible for all 
 the immoralities of slavery. The state by its laws determines 
 how title to the face of the earth may be acquired, transferred 
 and enjoyed. The vices of the feudal system, which virtually 
 made the lords of the manors masters and the tenants on 
 their estates slaves, were the vices of the state and perpetuated 
 by its laws. Modern great corporations are mere creatures 
 of the law, called into being by it, and with no power or 
 vitality beyond that given them by the state. They require 
 the active intervention of the courts and officers of the law 
 to protect them in the exercise of their functions. The great 
 land owner requires the strong arm of the law to dispossess 
 tenants who will not comply with his terms. In free America 
 he may drive everybody from his land who will not pay the 
 rent he demands, and in doing this the state is his servant and 
 executes his commands in accordance with the theory of his 
 absolute dominion over so much of the face of the earth as 
 he has lawful title to. Monopolies of all kinds and sorts are 
 either created or allowed by the state, and are always depend- 
 ent on its protection. The government then is directly re- 
 sponsible for all the wrongs and immoralities authorized by 
 it or which are necessary incidents of them. It can no more 
 escape responsibility for the injustice which results from its 
 laws of property than from that which inheres in the institu- 
 tion of slavery. 
 
42 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 The general run of legislative enactments deals merely 
 with details and incidents of the existing system. Funda- 
 mentals are seldom considered unless brought to view by some 
 political upheaval. But in dealing with incidents and details 
 the compass and chart of ethical principles should always be 
 looked to for safe guidance in the right direction. Sound 
 morality is not to be confined in the homes or the promulga- 
 tion of it left exclusively to religious teachers. The legisla- 
 ture is not only itself morally bound to follow ethical 
 principles in all its enactments, but in order '*to promote the 
 general welfare" is also charged with the duty to exert its 
 full powers in the dissemination of such principles and pro- 
 curing the observance of them. Ethical principles are not 
 necessarily rules of cold, hard and gloomy morality, denying 
 all pleasure and requiring mortification of the flesh without 
 leason. They are the rules that bring to humanity the maxi- 
 mum of love, joy and exuberant life, so ordered that these 
 blessings propagate their kind, continue and multiply in 'all 
 directions. 
 
 It may be said that this is the domain of religion and of 
 parental instruction rather than of governmental direction. 
 True religion of course teaches the immutable laws of the 
 creator, which cannot be other than the living moral law. 
 The most serious objection to religious teaching is that its 
 doctrines are asserted dogmatically, as having divine sanction 
 and admitting no possible errors. Religious establishments 
 are subject to many of the evil influences that affect secular 
 governments. The men who direct their affairs resort to 
 human expedients for their personal gratification and pro- 
 mulgate falsehood and immorality as having divine sanction. 
 The mere claim of divine authority for their teachings re- 
 sults in many places and for long periods of time in precluding 
 inquiry into the truth of them. Fair illustrations of the ex- 
 treme aberrations of the religious hierarchies are in the sacri- 
 fices of the ancient Mexicans, the Druids, the Hindoo sati, 
 the Holy Inquisition of the Church of Rome a fe\v centuries 
 ago with the frightful torture and burning at the stake of 
 innocent men for the fictitious crime of heresy, and the Mo- 
 
INTRODUCTION 43 
 
 hammedan propagation of the word by the sword. Less 
 vicious are the more modern extortions of contributions from 
 needy people to maintain the pomp and magnificense of church 
 estabhshment, ceremonial and priestly trappings; supersti- 
 tious awe of beasts, birds and reptiles as in India and ancient 
 Egypt and the worship of idols, immages, relics and symbols. 
 With such forms of darkness religious law-givers have ob- 
 scured the light and beauty of life. The overshadowing fault 
 of all great religious systems is that they constantly claim 
 divine authority and sanction for falsehood and a divine 
 commission to close the door against all searchers for truth. 
 The responsibility for the good conduct of each individual 
 rests primarily with himself. The ideal state of society is 
 one in which each person of his own accord adheres strictly 
 to the moral law and discharges all his social duties. What- 
 ever the form" of government or the system of laws promul- 
 gated by the legislative power, the heart and life of society 
 will still depend on the general average of voluntary indi- 
 vidual conduct. Wherever there is a general disposition to 
 be just, helpful and cheerful, there will be little need of legis- 
 lative rules to supplement the moral law. On the other hand, 
 where avarice, hatred and distrust prevail, no governmental 
 supervision can possibly fill the requirement. 
 
 Legislative Expedients 
 
 The legitimate field of legislative expedients is of vast di- 
 mensions and one in which law-makers may still find ample 
 employment after it ceases to be necessary to direct the morals 
 of the people. Where men combine for the common good, it 
 is necessary to determine the form of the combination and 
 the part to be performed by each participant. The national 
 government of the United States is a combination for cer- 
 tain general purposes. The framers of the constitution dealt 
 mainly, almost exclusively, with questions of expediency in 
 providing instrumentalities to carry out these purposes. They 
 established executive, legislative and judicial agencies to 
 severally perform specific functions. Instead of combining 
 all powers in one man or set of men they divided them so 
 
44 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 that each should be a check on the other. They vested 
 the executive power in a president, the legislative power in 
 Congress, and the judicial power in courts. In forming 
 Congress of two houses differently chosen they acted wholly 
 on considerations of expediency. There is no moral ques- 
 tion involved in the distribution of the powers of gov- 
 ernment among the three coordinate branches, but it was 
 deemed wise to do so, mainly because experience had shown 
 that where all the powers were combined, personal interests, 
 ambitions and passions often. dictated governmental policy to 
 the public detriment. It was thought that by a division of 
 powers each branch of the government would act as a check 
 on the others to confine them to the performance of the bene- 
 ficial functions for which they were established. With such 
 a distribution of powers public expediency is deemed more 
 likely to find expression through the public agencies than mere 
 personal expediency. Similar principles were applied in the 
 state constitutions. Acting under these constitutions law- 
 making bodies have established public agencies of various 
 kinds. Most of these are deemed necessary for the public 
 welfare. Some are places created for favorites, and others 
 to promote party, rather than public, ends. Here personal ex- 
 pediency overrides not only public expediency but also the 
 moral law. 
 
 As governments slough off their warlike and vindicitive 
 functions and take on more beneficent ones, an ever widening 
 field of possible usefulness is presented. As sentiments of 
 hatred diminish and kindness and mutual confidence increase, 
 the necessity for war passes away and men of all countries 
 join in all kinds of religious, charitable, social and business 
 organizations. The law-making power has much concern 
 with great private combinations. In despotic countries they 
 are viewed with suspicion because they may possibly conceal 
 revolutionary schemes. In the United States great business 
 con:ibinations exert undue influence on Congress, state legis- 
 latures and administrative officers. The practical question 
 how the beneficial activities of all such combinations can best 
 be preserved and promoted and their evil tendencies curbed 
 
INTRODUCTION 45 
 
 is one of much difficulty. The measure of Hberty to be ac- 
 corded to all citizens in forming combinations for lawful 
 purposes is a question of expediency to be determined by the 
 legislative power. It is also a question of expediency as to 
 how and to what extent their operations should be supervised 
 by the government. 
 
 In reference to the useful functions which the state itself 
 should assume as a political organization there is extreme di- 
 versity of opinion, ranging all the way from curtailment of 
 the powers now exercised by the government to the schemes 
 of the socialists and communists who would have state man- 
 agement of most or all industries and common ownership of 
 land and capital employed in industries. Shall the state own 
 and operate railroads, telegraphs, telephones, mines, factories, 
 ships, farms, stores, warehouses, banks, waterworks, gas, 
 light, heat and power plants, build dwellings, carry on the 
 business of insurance, maintain hospitals and provide medi- 
 cal treatment for the sick; in fine what and how much much 
 if any of the businesses now conducted by private persons 
 ought the state to undertake ? These questions have provoked 
 many hot discussions, conflicts and some bloodshed. Men 
 sometimes treat them as involving vital questions of morals. 
 They are in fact mere questions of expediency, experimental 
 in their nature, more or less temporary in character, and 
 reasonably certain of kaleidoscopic changes of aspect. Har- 
 monious concert of action for the accomplishment of desirable 
 ends is the great desideratum. Expediency must find the 
 way for it, not partial selfish expediency, but just public ex- 
 pediency. The moral law applies to all people at all times 
 and under all circumstances. Expediency is special, tempo- 
 rary and must be adapted to conditions. In determining 
 what tasks may safely be assigned to a person it is necessary 
 to know his physical, mental and moral strength, his habits of 
 body and mind, his purposes and desires, the influences with 
 which he is surrounded, the education he has received and 
 every other circumstance likely to affect his conduct. It is 
 possible to utilize men of every grade and kind. The difficulty 
 lies in putting each in his appropriate place and keeping him 
 
46 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 there. Concert of action among many implies specialization 
 and leadership. How shall the leaders be chosen? In enter- 
 prises conducted by the government they are appointed by 
 public authority or elected by the people. In those carried on 
 by private persons the general rule is that those v^ho furnish 
 the capital determine the plan of organization and make the 
 selection of leaders. In cooperative enterprises those who are 
 served by the organization select their agents and direct their 
 work. The United States now exhibits the greatest business 
 combinations under private management that have ever been 
 known. Ancient Peru affords an illustration of the most 
 advanced governmental direction of industry that we have 
 any account of. Under the despotism of the Incas a people 
 completely isolated from all other civilized nations, without 
 knowledge of letters or the use of iron, without horses or 
 cattle or any of the modern mechanical inventions, tilled the 
 soil, built temples and dwellings, roads, bridges and great 
 stone aqueducts, wove fabrics for clothing and decorations, 
 defended themselves against their savage neighbors and lived 
 in plenty and security. The government was one great busi- 
 ness organization in which every officer had useful functions 
 to perform for the general good. All were required to marry, 
 and all were furnished homes and land to till. There were 
 no landlords to collect rent, no usurers to extort interest, no 
 promoters taking anticipated profits of labor, no exploiters 
 monopolizing natural resources. Every one had his share of 
 the land assigned to him each year and his share of the pro- 
 ducts of the shearing of the flocks, and of the mines and the 
 fisheries. There were no rich living from the labors of others, 
 no paupers, no beggars, no prostitutes. With the added ad- 
 vantages of modern inventions what would they have accomp- 
 lished and how would they have lived? How much of their 
 system could be successfully adapted to modern conditions 
 under free institutions and among people who deny the di- 
 vinity of all priestly establishments? If the tie of common 
 brotherhood could be recognized by all in its fullness and 
 entirety the difficulty might vanish, but unfortunately we are 
 now very far from it. We are however rapidly breaking 
 
INTRODUCTION 47 
 
 down the walls of prejudice that have so long separated and 
 antagonized the nations with each other. Already there is a 
 faint perception of a universal bond of human fellowship. 
 The telegraph, telephone, printing press, railroad and steam- 
 boat, make near neighbors of the most distant people. Busi- 
 ness combinations are not confined within a city, county, state 
 or nation, but some of them are world wide. Men of all races 
 and nationalities unite their efforts in carrying them on. The 
 International Postal Union transports and dehvers mail in 
 every part of the civilized world at the least possible expense. 
 This is a purely public expedient, adopted and utilized by the 
 governments of all the nations. It conducts the greatest busi- 
 ness enterprise ever organized. The railroads are operated 
 by the governments in some countries and by private corpora- 
 tions in others. In Europe the telegraphs are mostly owned 
 by the government. In the United States they are owned by 
 private monopolies. We have transportation companies, 
 manufacturing and mining companies in great number, among 
 which are many which severally employ tens of thousands of 
 men of all races gathered from all the quarters of the globe. 
 We also have ship yards and other great establishments oper- 
 ated by the government. Our great works in our harbors and 
 rivers are carried on by the government, which also maintains 
 lighthouses and life-saving stations. Public roads and bridges 
 other than those used for railroads are built and maintained 
 by the public. It is needless to multiply illustrations in order 
 to show that great businesses may be carried on successfully 
 either by the state, nation or private combinations. It is some- 
 times assumed that there is a difference in the nature of the 
 businesses which are successfully carried on by public authori- 
 ties and of those under private management, but is there any 
 fundamental distinction of kind? Is there in the nature of 
 things an essential difference between the business of trans- 
 porting and delivering packages weighing an ounce and those 
 weighing one or ten pounds? Is there a fundamental differ- 
 ence between the business carried on in a mail car and that in 
 an express car? Is the business of transporting persons and 
 property essentially different in its nature from that of carry- 
 
48 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ing the mails? Is there an essential difference between the 
 business of building ships for war and that of building them 
 for commercial uses? Is there a difference of kind between 
 the business of casting guns, making armor plate and gun 
 carriages and that of making steel rails and railroad cars ? In 
 producing and transporting military supplies of all kinds 
 governments undertake and carry on any branch of business 
 that seems necessary to meet the emergency. Under the pres- 
 sure of war's exigencies they throw to the wind all nice 
 theories concerning such matters and adopt such expedients 
 and methods as seem best calculated at the time to accomplish 
 the desired results. Is there a fundamental difference between 
 the production of instruments of destruction and of those for 
 beneficial use? Manifestly it is not a question of principle 
 or morals but merely of expediency. It is for the law-making 
 power to adopt whatever plan appears to be the best adapted 
 to accomplish the public purposes. 
 
 But what are public purposes as distinguished from private 
 ones? Of late a distinction has been drawn between private 
 businesses affected with a public use and those not so affected. 
 Based on this distinction laws have been enacted providing 
 for the regulation of some businesses affected with a public 
 use, and the power to similarly regulate those not so affected 
 has been denied. The specialization of industry makes all the 
 people of a highly civilized state interdependent. All are de- 
 pendent on the products of agriculture for subsistence. Re- 
 striction of production may mean scarcity, high prices or 
 famine. All are dependent on the manufacturers for cloth- 
 ing and household goods. An abundance at low cost is de- 
 sired by all consumers. Any combination, regulation or 
 restriction on manufacturing activity that reduces production 
 below the public requirements or artificially advances prices 
 above a just compensation for the service is detrimental to the 
 public interest. All are dependent on the mines for supplies 
 of coal, oil and metals. Mining monopolies through which 
 unearned wealth is extorted from consumers are matters of 
 public concern. It follows that the production" of mineral 
 wealth is a matter of general interest calling for legislative 
 
INTRODUCTION 49 
 
 care. All are dependent on the railroads as well as the other 
 highways of commerce, and on the telegraph and telephone 
 as well as the mails for means of inter-communication. Sup- 
 plies of food clothing and fuel are absolutely dependent on 
 transportation facilities. Where then may a line be drawn 
 between one part of these lines of business and the other 
 distinguishing that affected with a public use from that not 
 so affected? Can such a line be drawn elsewhere than be- 
 tween all the productive activities on the one side and the 
 nonproductive and destructive on the other? Is it possible 
 lo eliminate the parasitic classes, which now absorb so much 
 of the products of industry, by fully protecting the useful ones 
 against their methods? Could modern society eliminate its 
 drones -and barnacles with as great success as ancient Peru? 
 The great moral purpose to be kept constantly in view by 
 the law-making power is to bring about a constantly nearing 
 approximation to conditions affording substantial justice be- 
 tween all the people, individually and collectively, and the 
 most ample provision for their physical, mental and moral wel- 
 fare. Elsewhere than in ancient Peru the conduct of most 
 productive enterprises has always been left under private 
 management for private profit. In recent years business com- 
 binations of all kinds, but more especially those engaged in 
 transportation, manufacturing, mining and commerce have 
 taken the form of private corporations. Capital, management, 
 skill and labor are made the bases for the distribution of the 
 gains of the common enterprise, with the result that the bur- 
 dens and benefits are often most unequally distributed. It is 
 the exclusion from these combinations of all altruistic im- 
 pulses, the lack of human sympathy, that gives to some of 
 them their cold and steely character. The managing power, 
 the board of directors, is almost universally merely a repre- 
 sentative of the stockholders, who have contributed the 
 capital. Neither the employees nor the public have any repre- 
 sentation in the management, nor any control over its policy. 
 The employer seems to be the natural manager, and corpora- 
 tions have developed along what appear to be natural lines. It 
 is found, however, that corporations performing functions on 
 
50 EVOLUTION OF GOVERNMENTS A'ND LAWS 
 
 which the pubHc are dependent, and which are either natural 
 or artificial monopolies, may become oppressive, and that 
 owners may ignore not only altruism but justice and decency. 
 When such conditions are presented the legislature is con- 
 fronted with the practical question of finding an efiicient 
 remedy. Will it undertake to supervise and reform the ex- 
 isting system or substitute a new one? Can it convert an 
 oppressive, dishonestly managed corporation into a beneficent, 
 honest one by supervising its operations ? Can public agencies 
 be established of superior efficiency in place of the private 
 ones? The modern trend of legislation in the United States 
 is along lines of supervision rather than the direct assump- 
 tion by the government of new business functions. This is 
 attempted in two ways; by general laws designed to regulate 
 charges for service to the public, imposing duties to be per- 
 formed and forbidding harmful activities. The enforcement 
 of such laws as to most classes of corporations and as to all 
 classes in most cases is left to the courts by the usual methods. 
 These imply a complaint on the part of the United States or 
 a state for a violation of a penal statute, or of a private suitor 
 for the enforcement of a right or the redress of a wrong. 
 Where the controversy is between a powerful corporation and 
 a private citizen of moderate means results are not satisfac- 
 tory. The great corporation, by reason of the number of 
 cases brought for and against it, is represented by attorneys 
 and officers who become familiar, sometimes too familiar, 
 with the judges. The private citizen is not ordinarily so rep- 
 resented. Under such circumstances favoritism for the cor- 
 poration is often charged, especially against judges holding 
 by life tenure. On the other hand juries are more likely to 
 incline toward the private citizen, and elective judges are 
 often charged with seeking popular favor at the expense of 
 unpopular corporations. Though the parties to such contro- 
 versies are theoretically equal before the law, they are not so 
 in fact. Recognizing the necessity for further interference 
 on behalf of the public, Congress has provided for the in- 
 spection and supervision of national banks by the Comptroller 
 of the Currency, and the states have adopted a smilar system 
 
INTRODUCTION 5i 
 
 of regulating state banks through a bank commissioner. The 
 states also provide a similar supervision of the business of 
 insurance through their insurance departments. j\Iore re- 
 cently Congress has provided the Interstate Commerce Com- 
 mission for the regulation of the business of common carriers 
 engaged in interstate commerce, and many of the states have 
 similar commissions to supervise such carriers within the 
 state. In a few states the functions of such commissions have 
 been extended over various other pubHc utilities. The func- 
 tions exercised by these various commissions are usually 
 classed as executive or administrative, but it is found by ex- 
 perience that to be efficient and accomplish satisfactorily the 
 purposes for which they are designed, it is necessary that 
 they should .also have other powers generally regarded as 
 legislative and judicial. Numerous acts creating such com- 
 missions have been declared unconstitutional on the ground 
 that they combined and confused the powers of the three 
 separate coordinate departments of the government. 
 
 The purpose of mentioning these difficulties here is to show 
 the general aspects of the question presented to the law- 
 making power in dealing with great business combinations. 
 The officers and commissions mentioned occupy a position in 
 the governmental systems inferior to the legislative body, in- 
 ferior to the courts and to the chief executive. The essence 
 of despotism is the combination of all kinds of political power 
 in the same hands without any superior power to prevent 
 abuses. The advantages possible to be derived from the exer- 
 cise of despotic power are promptness and efficiency. A com- 
 mission authorized to make rules for the government of great 
 business enterprises and to enforce them summarily is poten- 
 tially capable of remedying the evils of corporate misconduct. 
 The power merely to make an order which can only be en- 
 forced by an executive officer after a trial and judgment of 
 a court of original jurisdiction and a review in an appellate 
 court according to the prevailing system is wholly inefficient 
 for the control of great interests. Courts move altogether too 
 slowly and deliberate quite too long to be efficient in meeting 
 the exigencies of business in this manner. They are however 
 
52 EVOLUTION OF GOVERNMENTS A'ND LAWS 
 
 much more efficient when acting through receivers appointed 
 and removed by them at pleasure. The receiver takes 
 full charge of the business and conducts it in accordance with 
 the orders of the court with the very great advantage of the 
 protection of the court against all outside interference. Courts 
 acting through receivers in fact exercise precisely the same 
 combination of powers deemed unconstitutional in the hands 
 of commissions. If large combined powers are conferred on 
 public agencies the spirit in which such powers will be exer- 
 cised depends largely on the influences governing the selection 
 of the men chosen for them. It has often happened that the 
 public agents have been chosen by the very interests they 
 were expected to regulate. Under every form of government 
 from absolute despotism to democracy the men directly inter- 
 ested in the exercise of any governmental function are usually 
 the most active and influential in securing the appointment or 
 election of agents to perform such functions. The richer and 
 more powerful the combination of interests to be controlled 
 the greater the influence on the selection of the agents and 
 on their action afterward. It not only may happen but has 
 happened many times that special interests have dictated the 
 policy of one or both branches of Congress and of state legis- 
 latures. The law-making power, designed to promote the 
 welfare of all, in fact sometimes promotes the interests of the 
 few at the expense of the many. It is readily apparent that 
 combined powers somewhat despotic in character are poten- 
 tially most useful, and also susceptible of the greater abuses. 
 Where such powers are to be exercised only in supervising 
 and correcting abuses in one or a few designated lines of 
 business, and where the public agents exercising them are sub- 
 ject to removal by the appointing power at will or after brief 
 terms, the danger of abuse of them is not great. In all cases 
 however they add to the public burdens the salaries and ex- 
 penses of their offices. 
 
 Where the government undertakes to perform new business 
 function through its own agents the element of profit to pri- 
 vate investors is eliminated and with it all private manage- 
 ment and salaries of private corporate officers. The whole 
 
INTRODUCTION 53 
 
 problem is simplified to the performance of the service and 
 the collection of revenues to pay the expenses of it. The 
 Post Office affords the leading illustration of a continuing 
 great business conducted by the government, and the construc- 
 tion of the Panama Canal of a great public work carried on 
 by public agents at public expense. These functions are ex- 
 ercised by a republic. The pyramids of Egypt, the walls and 
 canals of Babylon and the Chinese wall are instances of vast 
 enterprises carried to completion at public expense under des- 
 potisms. The polity of ancient Peru exhibits the possibilities 
 of a despotic government engaged in directing the useful ac- 
 tivities of its people as well as its wars. It also shows how a 
 clearly defined general purpose of promoting the general wel- 
 fare and the systematic inculcation of the principles and 
 knowledge necessary to the accomplishment of it, may over- 
 come most of the evil tendencies of despotism and many of 
 those of popular governments. The great lack in Peru was of 
 private initiative and invention. Freedom to effect voluntary 
 combinations to accomplish lawful purposes is the foundation 
 of modern business progress. The governmental and business 
 organization of the United States and of the leading nations 
 of the east is exceedingly complex, and most complex in the 
 most advanced nations. Does improvement lie in the direc- 
 tion of simplification or of further complications? The moral 
 law, which is always above the legislature commands the elim- 
 ination of injustice and wrong and the promotion of the wel- 
 fare of all. The law-makers must choose the expedients for 
 the accomplishment of these ends. 
 
 As the moral responsibility for his acts rests primarily with 
 the individual, so the moral responsibility for the acts of men 
 who combine as a corporation rests primarily with them and 
 the agents they appoint. It is a practical question as to how 
 far the state will take cognizance of the misdeeds and short- 
 comings of private citizens, and the question concerning pri- 
 vate corporations is similar if not identical in principle. It 
 is impossible to remedy all evils. Experience and observation 
 indicate the tasks which are most urgent and which the forces 
 within the command of the state are capable of accomplishing. 
 
11 
 
 54 EVO'LUTION OF GOVERNMENTS AND LAWS 
 
 A consideration of prime importance is, what measure of 
 integrity and capacity can the state provide for the given task. 
 Theories of organization are highly important, but men with 
 the capacity and disposition to carry them out are indispen- 
 sable. The evils of autocracy arise mainly from the lack of 
 those moral restraints on the conduct of officials which ac- 
 countability to the people for their acts would impose. The 
 leading evils connected with the dealings of great corporations 
 are mainly due to , the same lack of accountability. Their 
 officers, agents and employees usually find their conduct ap- 
 proved if it results in profit to the owners, without regard to 
 its effects on others. In many cases no harm comes from ad- 
 herence to this principle, because the corporation itself must 
 struggle for existence and establish its moral character, but in 
 the case of the great monopoly the evil may become unendur- 
 able. 
 
 Specialization implies interdependence as its inseparable 
 concomitant. Where all the food is raised by one part of the 
 people, all the clothing made by another part, fuel provided by 
 another, and transportation by still another, while yet others 
 minister to special wants in endless detail, it is folly for any- 
 one to regard himself as independent of his fellows. There 
 is not merely the moral bond of common brotherhood but also 
 the material bond of common interest. Not only is there 
 separation into so many diverse fines of industry but in each 
 of them there are many distinct parts requiring special train- 
 ing, which only those so trained can fill, and the common pur- 
 pose of all can only be accomplished by the cooperation of 
 many, neither of whom could well perform the task of the 
 other. Each wheel in the great human machine must revolve 
 in its place and each cog must fit in its slot. In such a state 
 of society some of the liberty of the individual must give 
 way to the common needs. While modern combinations re- 
 sult in subordination and in some instances in oppression ap- 
 proximating slavery, and pride, arrogance, wastefulness and 
 ostentation exceeding that of many petty despots, neither of 
 these evils is a necessary incident of concert of action and in- 
 terdependence of men. They are mainly due to a disregard 
 
INTRODUCTION 55 
 
 of the moral law by those who rule the business. The law- 
 makers are confronted with the task of eliminating these evils 
 and enforcing the observance of the moral law in the appor- 
 tionment of the burdens and benefits of common undertakings. 
 Civilization is measured far more by the sum total of com- 
 bined effort and interdependence than by the achievements of 
 individuals acting separately. As it advances changes in the 
 forms of association and in the activities of the combinations 
 must take place. Militarism and all its wasteful and destruc- 
 tive activities is being and must continue to be sloughed off 
 and conserving and productive ones substituted. Legislation 
 with reference to all such combinations must of necessity 
 change with changing conditions. Finality in the form and 
 use of expedients to accomplish legislative or business pur- 
 poses is neither attainable nor desirable. It is idle to put 
 forth any formula of words as a sure guide for future con- 
 ditions. Ethical principles have permanence and should be 
 inviolable; expedients are changeable and should have liberty. 
 The beautiful ideal of a state of ''liberty equality and fra- 
 ternity" is not to be abandoned as utterly worthless because 
 of human imperfections or the savagery of men who have 
 uttered the words without comprehension of their meaning, 
 but the obstacles they interpose to its approximation are to be 
 removed, surmounted or avoided by men to whom it is a 
 guiding light through mazes of difficulty. New and yet un- 
 tried expedients will continue in the future as they have been 
 in the past to be shorter paths to richer fields. No one man 
 will suggest all of them. The combined judgment of many 
 will continue to be a safer guide in most cases than the 
 separate views of any one. 
 
 Judicial Functions 
 
 The function of the judiciary is to apply the existing law 
 to specific cases brought to the attention of the court or 
 judicial officer in the prescribed manner. In every well or- 
 dered state the rule enforced is assumed to be a pre-existing 
 one. In disposing of a case of controverted right it devolves 
 on the court to, first, determine the basis of fact on which 
 
S6 EVOLUTION OF GOVERNMENTS AiND LAWS 
 
 the controversy arises; second, ascertain what principles of 
 substantive law apply to the question presented by the facts, 
 and third, render such judgment as the law applied to the 
 facts requires. There is very great diversity of methods of 
 doing this, ranging all the way from a summary hearing of 
 the parties before a single judge, followed by an immediate 
 judgment, to the elaborate system of procedure with its long 
 list of technical rules of pleading and procedure and its suc- 
 cessive retrials and appeals. Equal diversity has obtained in 
 the constitution of courts and in the treatment of parties and 
 witnesses. Summary methods prevail under despotisms with 
 much disregard of law, and the extreme of prolixity and delay, 
 amounting to substantial incapacity to make final disposition 
 of a complicated case, is not uncommon in a great republic. 
 
 The law-making power establishes the courts, fixes their 
 respective jurisdictions and provides how they shall be con- 
 stituted. In a simple despotism the king is the final judge of 
 all controversies and may exercise his powers in person or 
 through whomsoever he pleases to designate. The first great 
 stride toward liberty is the establishment of a court that is 
 independent of the king, yet bound by the law. A full re- 
 view of the composition of the diverse courts that have been 
 established in the various countries at different times would 
 be out of place here, but many of them will be found in the 
 succeeding chapters. In English-speaking countries as well 
 as many on the European continent courts of first instance, 
 with power to determine all questions of fact and of law and 
 render final judgment thereon, are made up of one or more 
 judges, having or supposed to have expert knowledge of the 
 law, and a jury of laymen, usually twelve in number. The 
 parties are ordinarily bound to accept the situation and go to 
 trial before the judge assigned to hold the court, but chal- 
 lenges to the jurors are allowed both with and without the 
 assignment of cause therefor. In criminal cases the selection 
 of a jury often causes long delay and great expense, with a 
 net result of great inconvenience and little, if any, good. The 
 aim is to eliminate personal bias and prejudice, which is of 
 course eminently desirable, but the means allowed is ab- 
 
INTRODUCTION 57 
 
 surdly disproportioned to the evil it provides against. Sub- 
 stantially all cases in all courts are conducted by lawyers who 
 are employed and paid by the respective parties. Each of 
 them must have passed the prescribed examination into his 
 legal learning and made the requisite proof of moral char- 
 acter. In the trial of a case he is the champion of his client, 
 and his standing and income are dependent on success in win- 
 ning cases for those who employ him. Only in prosecutions 
 for public offenses and cases to which the state or some po- 
 litical subdivision of it is a party is an attorney present to 
 represent the public. Every step taken in a cause is under the 
 direction of a lawyer acting either as an advocate or judge, 
 for the judges are all lawyers. While the parties ordinarily 
 have the right to conduct their own cases, they seldom do so 
 if the matter is of much importance. In general all questions 
 of fact are finally determined in the court of first instance 
 having general jurisdiction, or some inferior court. The ap- 
 pellate courts are generally made up of several judges, and 
 rarely have the attendance of a jury. In these courts ques- 
 tions of law only are ordinarily determined. Litigants are 
 by no means sure of a final disposition of their case after the 
 decision of the court of first instance has been reviewed by 
 the highest tribunal to which it can be carried, for in very 
 many of them a new trial in the court of first instance is or- 
 dered, and the case is again at the starting point with nothing 
 settled but some proposition of law or procedure. The whole 
 system of courts is required for the discharge of the full 
 judicial functions of the state, but the courts of first instance 
 make final disposition of a great majority of all the causes. 
 The courts of last resort are only called on to decide certain 
 exceptional classes of cases of which they are given original 
 jurisdiction and such as are appealed from the lower courts. 
 In some cases successive appeals from court to court are al- 
 lowed, so that under certain conditions a case may be heard 
 successively in four or five different grades of courts. It 
 may well be asked which is the better, an arbitrary final de- 
 cision by one judge finally settling the whole controversy or 
 such a round of inconclusive trials and reviews, with the pos- 
 
58 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 sibility that the highest court will send it back to travel the 
 whole road over again? In building the latter system has 
 not the perspective been allowed to obscure the main purpose 
 of the judicial function and the mere incident been given more 
 weight and value than substantial justice? 
 
 It is a fundamental principle of jurisprudence that courts 
 do not take notice of any controversy till it is presented in the 
 prescribed manner by a complaining party. In all but a few 
 exceptional cases no action can be taken until notice has been 
 given to the adverse party in the manner provided by law. 
 It is a fundamental principle of justice as well as of law that 
 all parties interested in any matter to be determined shall have 
 fair notice of the claim made against them, of the time and 
 place of every hearing in the case, reasonable time and op- 
 portunity to attend, procure and produce evidence and present 
 their versions of the facts, the questions involved ' and the 
 law applicable thereto. These requirements furnish substan- 
 tially all the basis there is for codes and rules of procedure. 
 The primitive method is for the complaining party to summon 
 his adversary to go with him before the judge, to there state 
 his grievance and ask for redress, and for the defendant to 
 then make his answer, and the judge to decide the matter 
 after hearing the statements of witnesses or not, as appears 
 necessary. There are no written pleadings, no rules of pro- 
 cedure, no lawyers, little if any delay of the hearing and an 
 immediate consideration and decision of the controversy, so 
 that all concerned may act accordingly and go on with their 
 business. This in substance was the procedure in the early 
 days of Rome where the case was tried in the morning and 
 decision required before sundown. It was adapted to a simple 
 state of society. Much of the formalism and prolixity of 
 modern court procedure is due to the complex nature of mod- 
 ern business and modern theories and rules of rights to prop- 
 erty. In a case affecting many widely scattered parties it is 
 not possible to take all of them by the arm and lead them 
 before the judge, nor would it be practicable to make an 
 oral statement covering all the claims made against each of 
 them. It is necessary to write it down, so that it will be 
 
INTRODUCTION " 59 
 
 definite and all may know just what the complaint is. The 
 answer of a defendant may be equally full of details, and it is 
 therefore equally necessary that it be written. This shows the 
 need of written statements of claims, but it does not show any 
 necessity for a long jargon of set phrases to express an idea 
 which might be more clearly understood if written in a few 
 common words, nor for senseless repetitions on a theory that 
 each of a number of causes of action must be fully, technically 
 and separately set forth. The technical accuracy of statement 
 so strenuously demanded by most American lawyers is pal- 
 pably absurd. All that serves any real purpose in the state- 
 ment is the language that notifies the adverse party of the 
 claim made. All elaboration beyond this is surplusage, and 
 all mere jargon, such as is used to embelHsh bills in equity, is 
 worse than useless. In England, where this extreme techni- 
 cality in pleadings originated, a sensible system now prevails, 
 and the rules governing equity cases in the federal courts of 
 the United States have just been greatly simplified and im- 
 proved but in many of the states the ancient forms are still 
 observed. 
 
 When a case is before a court with all parties duly notified 
 of its pendency and fair statements made of the claims and 
 defenses of all parties it would seem natural that the regula- 
 tion of the details of the investigation into the facts and the 
 application of the law should be left to the court and adapted 
 to the situation presented. Instead of doing so in America 
 there are elaborate codes of procedure restricting the joinder 
 of causes of action and of parties, the defenses and counter- 
 claims of the defendants and the manner of conducting the 
 investigation. Numerous positive rules are declared govern- 
 ing the successive steps in the progress of the case and its 
 incidents and ancillary remedies. These rules are treated by 
 the courts as of the same binding force as statutes of sub- 
 stantive law, not only in the trial courts but in the reviewing 
 courts as well. This often results in the decision of cases on 
 mere lawyers' questions, having no connection with the real 
 controversy between the parties, but which have been injected 
 into the case by the lawyers in their eflForts to gain advantage 
 
6o EVOLUTION OF GOVfERNMENTS A'ND LAWS 
 
 from the rules of procedure. The theory on which these rules 
 are established is that they tend to a proper trial and a cor- 
 rect decision. The fallacy lies in the assumption that the 
 rules of procedure are so plain and easily followed that they 
 will be helpful in the investigation. A few simple rules regu- 
 lating the essential steps in the progress of the case are so, 
 but a multiplicity of complex requirements is a snare which 
 it is difficult to avoid. There is the same likelihood of differ- 
 ent interpretations of rules of procedure as of rules of sub- 
 stantive law, and every unnecessary positive requirement is 
 sure to result in needless annoyance, delay, expense and in- 
 justice. It is not possible to compel right decisions by mere 
 rules of procedure, but it is possible to compel wrong ones, 
 and this is in fact done in an appreciable part of the cases 
 tried in the courts of the United States. 
 
 A case being at issue on a disputed question of fact how 
 shall the truth be ascertained? In cases tried by a jury the 
 rule is that the jury answers to the facts and the court to the 
 law, and in other cases the facts are determined either by the 
 judge or a referee appointed by him. Methods of inquiry 
 have been as varied as the human mind can conceive. Some 
 are based on a superstitious belief in divine interposition to 
 protect the innocent and punish the guilty. Such were the 
 ancient English trials by ordeal. There was the fire ordeal 
 performed by a person accused of crime by taking in his hand 
 a piece of red hot iron, or by walking barefoot and blindfold 
 over nine red-hot plowshares laid lengthwise at equal dis- 
 tances. If he escaped unhurt he was adjudged innocent; if 
 hurt guilty. The water ordeal was performed by plunging 
 the bare arm up to the elbow in boiling water, or by throwing 
 the accused into the water. If he was burned in the hot 
 water or floated on the water he was guilty. There was also 
 the ordeal of the corsned, trial by wager of battle and by the 
 defendant waging his law, which he did by swearing to his 
 defense and having his neighbors swear that they believed he 
 told the truth. Similar superstitious tests of truth have been 
 resorted to by many primitive people. In all well organized 
 states both ancient and modern the usual method of ascer- 
 
INTRODUCTION 6i 
 
 taining the facts has been by taking the statements of wit- 
 nesses. There is very great diversity, however, in the 
 methods of taking the testimony, varying all the way from 
 extracting it by torture on the rack under the holy inquisition, 
 or with the bamboo in China, to the mere statement of the 
 witness, uninfluenced by any other consideration than regard 
 for the truth. In most countries a religious oath or admoni- 
 tion of the penalties of perjury is imposed before taking the 
 testimony. There is no country in which all the people have 
 yet attained sufficient moral strength to entirely eliminate the 
 danger of intentional falsehood. Moral delinquency of this 
 kind varies all the way from the deliberate misstatement of 
 a matter of fact to the mere failure to mention a minor cir- 
 cumstance having some bearing on the issue as to which no 
 pointed question compels a definite answer. Nevertheless 
 an overwhelming majority of all the people of European 
 stock are truth tellers by nature and habit, and in all the 
 ordinary affairs of life in or out of court and with or without 
 an oath their statements can be relied on whenever they are 
 called on for information. A far more common and serious 
 obstacle in the way of determining the facts is the unreliabil- 
 ity of the testimony of witnesses due to inaccuracy of observa- 
 tion and expression and defects of memory. These cause 
 witnesses to the same occurrence to give very different ac- 
 counts of it. Every infirmity in the organs of sense, in mental 
 processes and in knowledge of language and power of ex- 
 pression of the witness is liable to leave its mark on his state- 
 ments. Passing from the infirmities of witnesses to those of 
 jurors and judges we find that the testimony does not pro- 
 duce the same impression on all of them, and that different 
 ones reason to different conclusions from the same premises. 
 Where witnesses contradict each other, one juror will believe 
 one and another the other. The statement of one may be 
 absolutely true, yet made with hesitation, as if in doubt, 
 while the contradicting statement of the opposing witness may 
 be given promptly and positively. By what token can the 
 juror recognize the truth and detect the falsehood? 
 
 These multifarious difficulties in arriving at the truth in 
 
62 EVO'LUTION OF GOVERNMENTS AND LAWS 
 
 judicial investigations have induced the law-makers and courts 
 to adopt an elaborate system of rules of evidence. Some of 
 these absolutely exclude witnesses bearing certain relations to 
 the case or to the parties to it from testifying at all, or limit 
 their testimony to certain exceptional matters. Others re- 
 quire proof of certain facts to be made by a prescribed 
 number of witnesses, or by a certain kind of evidence, as a 
 written document executed in a prescribed manner, a record 
 made in a particular office or a copy of it made by a desig- 
 nated officer and certified to with the required formalities. 
 Generally the title to land must be established by deeds in due 
 form, but in many cases this is impossible and many excep- 
 tions and modifications of the general rule are found neces- 
 sary to prevent the most palpable injustice. Various contracts 
 are required to be in writing in order to be enforced through 
 the courts, on the theory that frauds will be perpetrated in 
 the absence of the requirement, yet to prevent frauds result- 
 ing from the requirement numerous exceptions are made. In 
 England and the United States until very recent times per- 
 sons charged with crimes were allowed to confess guilt and 
 receive their punishment without other proof, but were not 
 permitted to testify at the trial. Torture to extract confes- 
 sions of guilt has been and still is a favorite method of get- 
 ting evidence in many places. What is termed ''sweating" is 
 a mild form of torture still resorted to without authority of 
 law in many places by over-zealous police officers. The in- 
 herent difficulties in obtaining proof of crimes committed in 
 secret tempt the officers to force the truth from those who 
 know the facts. The torture is inflicted before trial on the 
 assumption that the prisoner is guilty but will not admit it. 
 The law now regards a person charged with crime as inno- 
 cent until he confesses or is convicted, and in many states he 
 is allowed to testify in his own behalf. As civilization and 
 moral standards advance more reliance is placed on the truth- 
 fulness and honesty of parties and witnesses and the arbi- 
 trary rules, based on distrust of them ; are abolished. Parties 
 were formerly excluded from testifying on the theory that 
 their interest in the case would cause them to lie. Wives 
 
INTRODUCTION 63 
 
 were prohibited from testifying for their husbands. These 
 restrictions are still retained in some states, but there is a 
 marked tendency to do away with them and assume that even 
 those most interested in the result of the trial will tell the 
 truth in the great majority of cases. There has also been a 
 corresponding relaxation of the rules relating to the recep- 
 tion of private account books and other private writings as 
 evidence. While there has been and still is ample basis for 
 distrust in particular cases, it may well be doubted whether 
 arbitrary rules excluding witnesses from testifying in any 
 case tend in the right direction. The credibility of witnesses 
 may well be affected by the considerations which have caused 
 their exclusion, but it is grossly unjust to assume that all 
 people will resort to falsehood to further their own interests 
 or that a majority of them will do so. The natural obstacles 
 in the way of the judicial search for truth cannot be removed 
 by closing the doors to any place where it may be found. 
 Arbitrary rules may prohibit its discovery, but cannot pro- 
 mote it. 
 
 The controversy may be merely as to the facts, or as to 
 the law, or as to both facts and law. Where the facts only 
 are controverted and the parties are agreed as to the law 
 applicable to them, the verdict of the jury or findings of fact 
 by the court are followed by such judgment as they warrant. 
 Where the parties disagree as to what the rules of substantive 
 law are, or as to which pi several acknowledged rules ap- 
 plies to the facts as found or admitted, it is the province of 
 the court to declare what the law is and which of its rules 
 apply to the controversy. Where shall the judge look for a 
 clear statement of the law? In China to the Penal Code, in 
 India to the Code of Manu, in all Mohammedan countries to 
 the Koran, in continental Europe to the compilations of Ro- 
 man law made under Justinian and the modifications of it 
 made by the law-making power of the particular nation, in 
 England to the acts of Parliament and the reported decisions 
 of the courts construing them or declaring the rules of the 
 common law, and in the United States to the federal and 
 state constitutions, to the acts of Congress and of the state 
 
64 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 legislatures, and to the decisions of the courts construing 
 them and declaring the common law. There is not now and 
 never has been in any country a code of written laws so 
 plain in its terms as to be self-explanatory, or which provided 
 rules directly applicable to every question presented to the 
 courts for decision. The Koran, which perhaps has higher 
 authority among Mohammedans than the code of any other 
 people has with them, contains so few and meager rules that 
 the judicial officers are forced to supplement them with others 
 which they deem in accord with the spirit of the Koran. The 
 wisdom of the prophet was not adequate to the future de- 
 velopments of Mohammedan civilization. So it is with every 
 code of laws, no matter how wise the author of it may be 
 or how great his authority. Advancing and receding civiliza- 
 tion each present new forms of human relation, activity and 
 combination, new fields of enterprise and new forms of prop- 
 erty. Old customs give way to new ones, and old standards 
 of morality are superseded by better ones. Progress means 
 change in the forms and purposes of human activity, and the 
 law, which is merely the expression of legislative will or es- 
 tablished custom, always lags behind the advanced thought 
 of any age. 
 
 In the United States the courts have to deal with many 
 kinds of law emanating from different sources, and to 
 determine which has controlling force in the case under 
 consideration. The constitution of the United States is the 
 supreme law to all courts, but its field is relatively very small 
 and it affords rules to solve only a very few of the great 
 number of questions to be answered. Acts of Congress 
 passed under its authority rank next. The constitution of the 
 the state in which the court sits is next in authority. Most 
 of the state constitutions cover more ground and are of more 
 frequent application than the Federal Constitution. Acts of 
 the state legislature which do not conflict with either state or 
 national constitution or a valid act of Congress come next and 
 cover a much wider field. While the whole volume of writ- 
 ten law contained in constitutions and statutes is much smaller 
 than that of the unwritten common law, it is within the 
 
INTRODUCTION 65 
 
 power of the state legislatures to cover as much or as little 
 of the field by statutes as they see fit. The task of ascertain- 
 ing what the written law is is often one of great difiiculty, ow- 
 ing to different enactments made at different times, under 
 different circumstances and for different purposes, which 
 overlap and conflict as to details. In addition to the consti- 
 tutional and statutory law there are treaties between nations 
 having the effect of law, and the unwritten principles of in- 
 ternational and admiralty law. Below all the foregoing there 
 are municipal ordinances operative as local laws, and the by- 
 laws of corporations and associations binding on their mem- 
 bers. While the common law is spoken of as the unwritten 
 law, it is looked for in printed books of reports of decisions of 
 the courts in which its doctrines are discussed in endless de- 
 tail and numberless cases. These cases are of various grades 
 of authority and persuasive reasoning. Decisions of the Su- 
 preme Court of the United States are binding on all courts in 
 their construction of the Constitution of the United States 
 and acts of Congress passed thereunder and as to all matters 
 within its special province, but its answer to any question as 
 to what the rules of the common law are have merely the 
 persuasive force of the opinion of the highest court in the 
 land. Similarly the decisions .of the highest court of a state 
 as to the law of the state, written or unwritten, is binding on 
 all inferior tribunals of the state. The leading purpose of 
 the people in providing reviewing courts is to procure and 
 preserve uniformity of construction of statutes and constitu- 
 tions, and uniform declarations of the rules of the unwritten 
 law. It sometimes happens that the Supreme Court changes 
 its views as to the rules of law and either overrules or ignores 
 its own prior decision. This of course introduces confusion 
 instead of preserving uniformity. When a prior decision is 
 pointedly declared to have been a misstatement of the law and 
 distinctly overruled lawyers and inferior courts may accept 
 the last decision with a fair degree of assurance that the rule 
 last announced will be adhered to in the future, but when a 
 prior decision is merely ignored without comment confusion 
 and uncertainty inevitably follow, for nobody can tell which 
 
(^ EVOLUTION OF GOVERNMEx\TS AND LAWS 
 
 precedent will be followed in the next case. Questions some- 
 times arise which have not been decided by the court of high- 
 est authority over the trial court. Resort is then had to the 
 decisions of courts of other states for guidance. It sometimes 
 happens that the court of one state resolves the doubt one 
 way and another the other. Sometimes the courts of different 
 states are about equally divided in number on each side, and 
 sometimes the less number appear to be the best authorities. 
 With all this multiplicity of sources of the law is it strange 
 that courts of first instance, which have to deal with both 
 the facts and the law are sometimes reversed by the reviewing 
 courts? If mere complexity of the laws is an index of civili- 
 zation, the United States is a highly civilized country. The 
 publication of reports of the decisions of the reviewing courts 
 goes on at the rate of something like two hundred volumes 
 a year, and the number steadily increases. That there are so 
 many is of itself some proof that the law is in an unsettled 
 state. The truth is that the modern tendency to refinement 
 and nice distinction has so obscured many wholesome general 
 principles that the rule itself can no longer be applied with 
 any fair degree of certainty or uniformity and is therefore 
 thrown aside and one or another exception followed. It is 
 manifest that the present system will ultimately fall of its 
 own weight. Much of the public dissatisfaction with the 
 methods of the courts and the delays and expense of litigation 
 is chargeable, to the impossibility of a full consideration of the 
 law in the trial courts. The trial judge can make only a 
 cursory examination of authorities bearing on a nicely bal- 
 anced question, while the reviewing court proceeds with great 
 deliberation, and feels called on to state and apply the law 
 with the utmost accuracy. Notwithstanding the vast accumu- 
 lation of recorded precedents, new inventions, new combina- 
 tions and new forms of contracts are presenting new questions 
 to the courts. Though broad general principles may apply, 
 the habit of seeking for identical precedents has become so 
 fixed that courts hesitate to apply broad principles without the 
 support of precedents of like cases. This extreme nicety leads 
 rather to confusion than to certainty. Ordinarily the gen- 
 
INTRODUCTION 67 
 
 eral principles are better guides and more easily followed than 
 the similar precedents. In theory there is and always has 
 been a rule of law applicable to and decisive of every contro- 
 versy, else cases might arise which could not be determined. 
 The judge must find a rule, whether it has ever been an- 
 nounced or not. This is true in all countries and at all times. 
 
 If every disagreement were submitted to the courts under 
 the existing elaborate system they would be overwhelmed with 
 such a mass of litigation that it would be utterly impossible 
 to dispose of it. As it is the judicial mills are so full in many 
 places that long delays amounting to a substantial denial of 
 justice are inevitable. Fortunately the people themselves ad- 
 just most of their differences without resort to the courts. 
 Business is so conducted that but a very small part of the 
 numberless transactions of commerce and employment give 
 rise to any dispute. The parties to them frequently agree on 
 terms and adjustments of their affairs quite different from 
 what the law would impose. The moral law, views of justice 
 and fairness often induce one to give more than the law re- 
 quires or the other party asks, or to accept less than such 
 amount. As moral standards advance and altruistic impulses 
 increase necessity for the exercise of judicial functions di- 
 minishes. 
 
 While the courts could do much to overcome the difficulties 
 above outlined by improvement of their own methods, com- 
 prehensive reforms can only be effected by the legislative 
 power. Many branches of the law admit of world wide uni- 
 formity, while others are of necessity local. The law of the 
 high seas, which no nation owns, must be common to the navi- 
 gators of all nations. The rules of commerce are susceptible 
 of substantial uniformity, and the law of personal relations, 
 though so long and grossly unjust, ought to be uniforml}^ 
 just throughout the world. Slavery has already met the con- 
 demnation of all civilized people, and all other forms of op- 
 pressive personal relations must give way to moral progress. 
 Titles to land and rights of occupancy of it must of necessity 
 be dependent in some measure on local conditions of soil, 
 climate, market and pressure of population. The purposes, 
 
68 EVOLUTION OF GOViBRNMENTS A)ND LAWS 
 
 forms and extent of industrial and commercial combinations 
 will always depend in some degree on such conditions and 
 also on the habits, capacity and character of the population. 
 There are already beginnings of a common law of the world, 
 the principles of which are recognized by all civilized nations. 
 With an advancing recognition of moral standards it becomes 
 apparent that the relations of nations however distant and dis- 
 similar should be regulated by law, and also that the law 
 should be just. World wide reforms having the effect of 
 amendments of the law of nations are being made through the 
 instrumentality of conferences at the Hague and elsewhere of 
 representatives of the nations, by treaties between different 
 powers, and yet more by the dissemination of the principles 
 of morality. Legislative bodies in all parts of the earth now 
 take some notice of the laws of distant nations and shape 
 their own acts with some reference to the light they get from 
 abroad. The most marked evil tendency resulting from the 
 imitation of foreign examples is in the drift of the peaceful 
 nations of the east toward the vicious militarism of the west, 
 but it seems reasonably certain that this evil will correct itself 
 in the near future, and that the universal law will be a steady 
 approximation toward the moral law. 
 
 The evil of an unwieldy body of precedents, similar to that 
 with which we are afflicted in the United States, existed in the 
 Roman Empire in the time of Justinian, and was then met by 
 a general codification. This remedy could be applied with 
 comparative ease under an autocrat, but with legislative 
 powers apportioned between Congress and forty-eight state 
 legislatures the practical difficulties appear almost insurmount- 
 able. A start toward uniformity throughout the states has 
 been made through the influence of the American Bar As- 
 sociation and the Commissioners on Uniform State Laws, but 
 anything approximating a general codification of the whole 
 body of the law throughout the Union is not yet even fore- 
 shadowed. Manifestly the widest practicable uniformity is 
 eminently desirable. The obstacles to intercourse between 
 residents of different parts of the country interposed by time 
 and distance have been largely eliminated by modern inven- 
 
INTRODUCTION 69 
 
 tions. The obstacles interposed by diverse laws can be elimi- 
 nated by uniformity. The process by which this may be 
 promoted is foreshadowed by the start already made by the 
 Commissioners, taking one topic at a time and devoting ample 
 time to it. More rapid progress might be made if the Com- 
 missioners had more general recognition throughout the states 
 and sufficient financial support to enable them to devote the 
 necessary time to the work. In a period of invention and 
 rapid changes of social, industrial and commercial combina- 
 tions, a rigid code, purporting to cover the whole field of the 
 law for the future, is neither practicable nor desirable, but it 
 is possible and eminently desirable to codify those branches 
 that admit of complete uniformity, like commercial law, and 
 that wherever moral principles are involved in the law on any 
 subject the closest possible approximation to the just rule 
 should be adopted and given the most ample application. 
 
 The states acting separately may make substantial progress 
 in simplifying the laws of local application by codification by 
 topic of these subjects. Of course all uniform state laws, 
 however formulated, would only become effective on their 
 adoption by the state legislature and would appear in the 
 statute books merely as laws of the state. The value of a 
 codification would be dependent in some measure on the de- 
 gree of permanence attaching to the rules contained in it, but 
 it has the advantage of classification and orderly arrange- 
 ment, and tends to clearness in case of subsequent amend- 
 ments. These are matters of great importance in simplifying 
 the labors of the judge. When the rules of substantive law 
 are scattered through numberless volumes under all sorts of 
 classification and headings, he can never know that his in- 
 vestigation has quite covered the whole subject. With a com- 
 plete codification of any topic he might feel a fair degree of 
 assurance that he had all the law he required before him. 
 After the best possible codification of existing law has been 
 made there will still remain the experimental field of new 
 subjects and radical changes of old ones, of new public enter- 
 prises and new private schemes requiring regulation. 
 
 All questions of fact and of law which are determined by 
 
70 EVOLUTION OF GOVERNMENTS AiND LAWS 
 
 the judges are resolved by the opinion of the majority of 
 them, but in most states the determination of a question of 
 fact by a jury of twelve requires the concurrence of all. This 
 is most illogical and productive of great expense, inconven- 
 ience and delay in a considerable part of the difficult cases. 
 In criminal cases subjecting a defendant to vindictive punish- 
 ment it is merciful to require unanimity, but in civil cases the 
 concurrence of three-fourths is ample, and it w^ould be equally 
 safe in criminal cases prosecuted v^ith a view to the welfare of 
 the defendant as well as the public. 
 
 In many states new trials of all the issues are granted for 
 reasons affecting only one or more of them. Where this is 
 done the first trial goes for nothing, when logically it should 
 settle all issues as to which there has been a fair and full trial 
 and clear finding. 
 
 Successive appeals ought not to be allowed in any case. 
 The evil consequences of them far outweigh the general 
 benefit. 
 
 Questions as to the constitutionality of statutes ought to be 
 settled in advance of the private litigation under them, and in 
 a proceeding in which the public is represented. It causes 
 contempt of the legislative authority to require private citi- 
 zens to determine for themselves when an act of Congress or 
 a state legislature is valid, and, having acted in the belief that 
 it is valid, to be called on to defend it through a series of 
 courts and suffer loss at the end because the court of last 
 resort holds it invalid. 
 
 Executive Functions 
 
 In the evolution of government from chaotic liberty the 
 first function to be developed is the executive. It is usually ex- 
 ercised in leading war parties, hunting or fishing expeditions, 
 and in such manner as accords with the character, customs and 
 purposes of the tribe. Combined with it are such crude be- 
 ginnings of legislative and judicial functions as the situation 
 requires, all assumed ordinarily by a single leader. The next 
 function taking separate form is the legislative, usually ex- 
 ercised by a general council of the tribe or the elders or heads 
 
IXTROOUCTIOX 71 
 
 of families in it. Representative legislative bodies chosen by 
 the people are a very late development of advanced civiliza- 
 tion. Judicial functions are exercised by the king in person 
 in a small despotism, and in larger ones by persons appointed 
 by him to act in his stead. The Greeks and Romans give us 
 the earliest known well defined division of powers among the 
 three departments of government. This division now obtains 
 throughout Europe as well as America, and is being extended 
 into Asia. The separation of executive, legislative and ju- 
 dicial functions is nowhere complete. In most monarchical 
 countries the chief executive officers under the crown take the 
 mitiative in the most important legislation and have a voice 
 in the deliberations of the Parliament, and all laws require 
 the approval of the king. In Great Britain the ministry exer- 
 cise the executive functions with no substantial interference 
 from the king. They are always in accord with the majority 
 in Parliament, for whenever they cease to be so a new cabinet 
 is formed and the House of Commons is usually dissolved 
 and new members elected. In all countries, where there is a 
 separation of executive and legislative powers, it is necessary 
 that the executive departments report to the legislative the 
 needs of the public service and submit estimates of the moneys 
 required for each and the requirements of men for military, 
 naval and civil service. 
 
 In the United States the president and the governors of the 
 states make recommendations respectively to Congress and to 
 the legislatures through written messages, but are not allowed 
 to take any part in their deliberations ; nor are any other ex- 
 ecutive officers entitled to do so. The President has a veto 
 on acts of Congress, but this may be overriden by a vote of 
 two-thirds of each house and the law enacted without his sanc- 
 tion. Similar rules apply to the governors and state legisla- 
 tures. The influence of the chief executive under the system 
 of political parties which has prevailed from early times de- 
 pends on whether his party is in the majority in the two houses 
 of Congress, or the legislature of his state. When the ex- 
 ecutive is in political accord with the majority in both houses 
 his influence is usually very potent in shaping legislation ; when 
 
72 EVO'LUTION OF GOVERNMENTS AND LAWS 
 
 he is not his influence over appropriations of money may still 
 be great through estimates of the public needs, but as to other 
 matters of legislation it may be very small. In this particular 
 the system is lacking in efficiency and ultra conservative. 
 
 While judicial power has been taken away from chief ex- 
 ecutives in all civilized nations, the appointment of the judges 
 is still a function of the chief executive in Europe, and for 
 the federal courts in the United States and the state courts 
 of some of the states. In others they are chosen by the legis- 
 lature, but in most of the states they are now elected by the 
 people. The judicial function of trying impeachments of 
 presidents and other civil officers of the United States, includ- 
 ing judges of the federal courts, is vested in the senate of 
 the United States, and of the governors and other state offi- 
 cers in the state senates. Impeachment by charges preferred 
 by the lower legislative body and tried by the upper is not an 
 efficient method of punishing public officers for misfeasance 
 m office. It may be wise to have so conservative a remedy in 
 the case of the president and vice-president, but as to all other 
 officers it is an impracticable scheme. 
 
 The exe'tutive head of every country, by whatever name he 
 may be called, is always commander in chief of the army and 
 navy and the representative of the nation in all dealings with 
 foreign nations. All civil as well as military officers, except 
 such as are made elective by the legislature or by popular vote 
 are also appointed by the chief executive. While the law- 
 making power levies the taxes and gives general directions 
 for its appropriation, it is the executive officers who collect 
 the money and use it. By reason of its control of appoint- 
 ments to office, of the expenditure of public funds and its 
 daily contact with the people in the transaction of the public 
 business, the executive department exerts a powerful influence 
 both on the legislative department and public sentiment. 
 Theoretically in the United States it is subject to the direc- 
 tion of the legislative and judicial branches of the government 
 acting within their respective spheres. It is subject to the 
 laws, and executive officers are bound to carry the judgments 
 of the courts into execution. They are liable to trial and 
 
INTRODUCTION 7Z 
 
 punishment by the courts for their violations of law and 
 duty, and in some instances in some of the states to removal 
 from office by them. The vast executive powers of the general 
 government of the United States are concentrated in the 
 President. The heads of the executive departments are ap- 
 pointed by him and are his advisers, but they hold office during 
 his pleasure only, and he has power to remove them and ap- 
 point others at will. The states have a far less forceful ex- 
 ecutive head. In most of them the chief executive officers 
 other than the governor are also elected by the people, and 
 are not subject to removal by him. The greatly superior 
 efficiency of the federal plan has not yet induced the states to 
 model their executive departments after it. 
 ^ In the discharge of executive duties it often becomes neces- 
 sary to determine questions of fact preliminary to the per- 
 formance of a duty. This the executive officer who is called 
 on to act does summarily in his own way, usually without any 
 formal trial. Perhaps the most important instances occur in 
 matters affecting the friendly relations of the country with a 
 foreign power. The protection of citizens temporarily in 
 foreign states frequently makes it necessary to inquire into 
 transactions occurring in remote parts of the earth. In 
 exercising the pardoning power an inquiry into the character 
 and conduct of the applicant for mercy closely analogous to a 
 judicial trial of a question of fact is necessary, though the 
 proceeding is wholly discretionary with the executive in most 
 states and countries. 
 
 The moral progress of the world is exhibited by the steady 
 and rapid evolution of executive departments into agencies 
 for the discharge of useful peaceful functions, and the ten- 
 dency to slough off the baneful military activities. While in- 
 ventions of destructive agents and instruments have kept pace 
 with the inventions of useful ones, and while the nations still 
 waste their energies, their substance and their men in need- 
 less and vicious armaments and war preparations, the utter 
 immorality of aggressive wars is recognized, and the exec- 
 utives of all advanced states feel the restraining influences of 
 an advancine moralitv which condemns war. 
 
74 EVOLUTION OF GOVERNMENTS A)ND LAWS 
 
 Checks and Balances of Governmental Powers 
 
 Much has been said by writers on poHtical economy in com- 
 mendation of the plan of restraining each branch of the gov- 
 ernment within its useful field by placing a countervailing 
 power in another branch, and there can be no doubt of the 
 value of such balances of power. Nevertheless the ultimate 
 effective checks must always remain with the general body of 
 citizens and be kept alive by education and an active public 
 sentiment; else they soon lose all potency. The true theory 
 of all official power is that of agency to do particular things, 
 not of a general agency subject only to a few special limi- 
 tations. The balancing of powers by constituting different 
 agencies to act as checks on each other has been tried often 
 and in a great variety of ways, but nowhere with ideal results. 
 The Chinese imperial system, so far as all officers under the 
 emperor were concerned, was based on this idea, but corrup- 
 tion and inefficiency were the rule rather than the exception. 
 Rome set tribunes against consuls and massed plchs against 
 patres, yet the senate continued to rule till overawed by the 
 legions under military leaders. A government of limited 
 powers exercised for short periods by persons taken from and 
 returned to the general mass of citizens is least dangerous to 
 liberty. The objections to it are lack of continuity of pur- 
 pose and efficiency. In a country where ignorance and im- 
 morality prevail these objections are valid. Liberty and order 
 are impossible without self-restraint exercised voluntarily by 
 the great majority of the people. Education is by all odds 
 the most potent factor in maintaining any governmental sys- 
 
 ^ tem. This is more clearly illustrated by the Asiatic govern- 
 ments than by the European, where illiteracy has prevailed 
 until very recent times with the exception of the Greek and 
 
 ^ Roman periods. A definite system of education in law, re- 
 ligion and social organization, enforced as a divine ordinance, 
 has moulded the character of all Hindoo society for thousands 
 
 1 of years. The Mohammedan system has been similarly pro- 
 pagated. The Chinese books and teachers have played an 
 equally important part in preserving the peculiar institutions 
 
INTRODUCTION 75 
 
 of that country and securing obedience to much that appears 
 to Europeans as unquaHfiedly bad. Europe and America have ^ 
 also been greatly influenced by the teachings of the Bible, also 
 of Asiatic origin, which have been accepted as religious truth, 
 but not as a guide in the formation of governments, or a sys- .. 
 tem of laws to be administered in the courts. In this it will 
 be seen that the use of the Bible as a sacred book is somewhat 
 anomalous, for the Koran and the Code of Manu are of the 
 highest authority as books of law in all courts where their 
 religious authority is accepted. The morals of the Old Testa- 
 ment are discarded as too low for this age. The Christian 
 conception of universal love for all humanity indicates the 
 ideal social condition, without elaborating the details of the 
 application of it to the particulars of human conduct. Love 
 as a passion is not universal, but partial, responding to in- 
 fluences not always readily comprehended. Though capable 
 of stimulation by education, its mainspring rests in the seat of 
 the emotions of the person. The heart responds to impulses 
 that no one can wholly control. If all could be induced to act 
 as love for each and all would dictate, the destructive and 
 corrective functions of government would be eliminated at ^ 
 once, for there would be nothing left on which to act. Wars 
 would cease, and those who now commit crimes would be 
 wholly absorbed in harmless activities, beneficial to themselves 
 or to others. Government in its sinister, meddlesome and 
 cruel sense might at once be dispensed with. But this would 
 not do away with the necessity for social organization. Great 
 numbers cannot act in concert for their mutual benefit with- 
 out rules governing the conduct of each and an apportionment 
 of duties. Schools for the instruction of all in the rudiments 
 of letters, science and the arts and special instruction for. 
 each to qualify him for his particular part in life will always 
 be necessary. Until the ideal Christian spirit is universal it 
 will continue to be necessary for the people to guard against 
 abuses of governmental powers. The idea of oflicial checks 
 balancing each other is based on the theory of a governmental 
 force above the people. Unless those for whom powers are 
 exercised are capable of approving or condemning the acts of 
 
7^ EVOLUTION OF GOVERNMENTS /^ND LAWS 
 
 their agents according to their merits, it is idle to expect one 
 set of officials to protect the people effectively against an- 
 other. It is quite too easy for the two sets, chosen to watch 
 each other, to combine for their common advantage against 
 the general public. History is full of such combinations in 
 the United States as well as in China. 
 
 General Purposes of Government 
 
 The central idea of government is an organization through 
 which the combined force of many may be exerted. The ob- 
 jects to be accomplished by the use of this force may be bene- 
 ficial to all, to a few or to one alone, and they may benefit all 
 or a part, but in unequal degrees. Where the government 
 takes the form of an unlimited monarchy, the ruler has the 
 power to take for himself and his favorities all of the bene- 
 fits, and to place all of the burdens on the multitude. The 
 monarch may desire the general welfare of his subjects, and 
 may promote it in some ways, but the maintenance of his 
 authority is dependent on suppressing popular impulses in 
 public affairs. The average man magnifies his own merits 
 and importance and minimizes those of others. He also sym- 
 pathizes most with those near him. So it inevitably comes 
 about in a despotism that the monarch and his favorites en- 
 gross the benefits of the state's power, and by a law of moral 
 • compensation the excessive advantages enjoyed curse the favo- 
 rites with low moral standards and such consequences as 
 naturally result from them. Where the form of the govern- 
 ment is that of an aristocracy, the beneficiaries may be more 
 numerous, though not necessarily so. Where they act in con- 
 cert the result is much the same as in the case of the despot- 
 ism, but there are more heads to be gratified, and the rapacity 
 of each is liable to encounter some resistance from the others. 
 The proletariat are still without power to enforce their rights. 
 In popular governments the theory is that powers are delegated 
 to public servants, to be used for the benefit of all, and that 
 the benefits and burdens of government are impartially dis- 
 tributed. An art, however, corresponding to that of the 
 courtiers, develops in the republic, and through specious pre- 
 
IXTRO'DUCTIOX ^7 
 
 texts crafty men employ the powers of the state for their own 
 enrichment in different ways, but with results similar to those 
 of the courtier's f awnings. The form of the government does 
 not eliminate the disposition to be unjust, nor are the balances 
 cf powers so adjusted as to enable the many who bear the 
 burdens to effectually curb the rapacity of those who gain un- 
 merited favors from legislatures, courts and administrative 
 officers. Arbitrary laws sanctioning slavery, land monopoly, 
 and special privileges in trade, transportation, manufacturing, 
 mining and supplying various needs of the public, work out 
 systems of favoritism and oppression. These are aside from 
 the direct exercises of the powers of the government for the 
 enrichment of the officials and their friends. Even in the 
 best ordered republic the taxing power is exercised to some 
 extent merely to favor a few persons. 
 
 The prudent individual seeks to mark out for himself a line 
 of conduct reaching through some or all of the balance of his 
 life, which he believes will conduce to his future welfare. He^ 
 does best who follows a course which tends to continually 
 make him stronger, better and happier. Close observance of '^ 
 the moral law and of every precept of it will generally tend 
 to a long life of increasing enjoyment. Neglect of the needs 
 of the body induces weakness and disease, neglect of the mind, 
 ignorance and dependence ; idleness and wastefulness poverty ; 
 hatred and envy, enmity and suffering. On the other hand 
 the performance of every duty to himself and to others tends 
 to health, prosperity and happiness. The rules by which the 
 individual governs his own conduct are the product of his 
 education, environment and native mental force. He may 
 observe them steadily or spasmodically with corresponding 
 results, but death ends the accessible record of success, failure, 
 pleasure and pain. The state seeks to direct the destinies of 
 many people. Its legitimate object is essentially similar to 
 that of the private person, that is to promote the welfare and 
 increase the happiness of its citizens, but it has no fixed limit 
 of numbers of persons affected or duration of its influence. 
 To accomplish this result it must cause the observance by the 
 people of those rules of conduct which tend to propagate con- 
 
78 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ditions favorable to human happiness, and to ehminate conduct 
 destructive in its tendencies. The state looks not merely to 
 the welfare of persons now living, but of the race in future 
 generations. Its rules therefore must have a wider range of 
 present application and look forward to more remote conse- 
 quences. Though immoral conduct may appear profitable for 
 short periods and to a limited class, time surely discloses its 
 destructiveness. Bentham's test of utility, given general ap- 
 plication to all alike and carried to its remote consequences, is 
 a test of morality. His measurement of utility by the pleasure 
 or pain produced may admit of more doubt, for the dividing 
 line between sensations of pleasure and of pain is often in- 
 capable of ascertainment, and disagreeable sensation seem es- 
 sential to our vital processes. Life, health, strength, knowl- 
 edge, beauty, abundance of usable things, the love of friends 
 and good will of all, are generally regarded as desirable. 
 There are certain lines of conduct that tend to produce and 
 preserve these blessings. There are others that prove destruc- 
 tive of them. It would seem that the legitimate function of 
 the state is to search out and declare as substantive law what 
 rules of conduct are beneficial in their tendencies, and what 
 are destructive, and to devise governmental machinery de- 
 signed to induce observance of the former and avoidance of 
 the latter, and that moral improvement and material advance- 
 ment should continually accrue as the product of legislative 
 wisdom and foresight. To what extent such functions have 
 been recognized and exercised by the governments of the 
 leading nations of the earth is one of the main subjects of our 
 inquiry. It will be found that the organized forces of society, 
 especially in the hands of a single ruler, are often exerted to 
 destroy, rather than to build up, and that all the nations of 
 the earth look to armies and navies as means of gain and 
 preservation, rather than to the cultivation of those firm bonds 
 cf friendship which are indispensable to peaceful relations. 
 
 The rule of progress is good for evil, kindness to overcome 
 hatred. Viewed merely as a cold and passionless artificial 
 being, the true mission of the state is, and always must be, 
 to keep people from harming each other, and to lead them to 
 
INTRODUCTION 79 
 
 move in concord in the accomplishment of purposes beneficial 
 to all. If all were fully employed in moral pursuits, crime 
 would disappear as a necessary result. 
 
 Selfishness has its root in our natures, and care for self 
 is a moral duty. Care for our progeny is both a privilege 
 and a duty, and affords one of the most powerful incentives 
 to the accumulation of wealth and mastery over others. In 
 the struggle to gain these many parents fail to comprehend 
 the relative value of mere inherited wealth and of favorable 
 conditions for their children to live natural useful lives. It 
 is only when we clearly perceive that the welfare of our 
 progeny is inevitably locked with that of the descendants of 
 our neighbors, and that the only safety for any lies in high 
 moral standards, justice to all, and the growth and extension 
 of kindness both as a sentiment and a recognized rule of 
 conduct, essential to human happiness, that it is possible to 
 make the best provision for future generations. Instead of 
 starting life with great wealth and a contempt for useful 
 labor, it is far better for any normal healthy child to be 
 trained to do his part and bear his share of the burdens of 
 life, and taught that the largest and best life is that which 
 accomplishes most for the good of others. 
 
 Not to destroy enemies by war, but to destroy enmity by 
 kindness and friendly intercourse; not to punish criminals, 
 but to eliminate crime by inducing right conduct; not to force 
 the unwilling performance of duty, but to lead men to vol- 
 untarily follow high moral standards for the joy of well 
 doing ; not to enforce obedience to the arbitrary will of rulers, 
 but to induce the acceptance of such direction as is essential 
 to concert of action; not to stifle individual liberty, but to 
 encourage and protect in all worthy efforts and enterprises, 
 are the ideal purposes of governments and laws. How the 
 nations of the earth have been afflicted with ignorance of 
 these fundamental truths, how those in authority have dis- 
 regarded them, and how the people have suffered by reason 
 thereof, we shall see in our brief review of the rise and fall 
 of states, and the principles by which they have been governed. 
 
CHAPTER I 
 
 Unorganized Tribes 
 
 In the lowest social state we find individual liberty wholly 
 unrestrained. The weak and despicable Digger Indians, 
 dwelling in rocky and desert places, feeding on the most 
 disgusting fare, though they have chiefs in accordance with 
 the customs of the more vigorous branches of the Utah 
 family, recognize no authority in them, and each individual 
 follows the dictates of his own torpid will. 
 
 The lower Californians did not differ greatly from the 
 Diggers in modes of life, though living under more favor- 
 able surroundings and exhibiting more providence in the 
 manufacture of weapons and utensils. With well formed and 
 vigorous bodies and not wanting in courage, they lived with- 
 out habitations, government or laws and paired off at pleasure 
 without a conception of the marriage relation. The Yaghans 
 of Tierra Del Fuego, living in a most inhospitable clime and 
 under circumstances rendering concert of action indispensable 
 to even a small degree of comfort, yet dwell apart, each family 
 by itself, naked and without shelter, recognizing neither chief 
 nor laws and feeding on their own kind. 
 
 The Eskimos on the inhospitable shore of the Arctic Ocean, 
 though far superior in industry, intelligence and nearly every- 
 thing else, except cleanliness, are also said to recognize no 
 authority. Probably this is due to the necessity for living in 
 very small villages, owing to the barrenness of the country 
 and the peculiar climatic conditions under which they live. 
 The long night of winter prevents intercourse with others 
 living at a distance and effectually isolates each group. Dur- 
 ing the brief but busy summer, hunting and fishing occupy 
 their attention. For this concert of action in great numbers 
 is not advantageous. More can be accomplished by separat- 
 ing than by combining. Isolated from the balance of the 
 
 80 
 
UNORGANIZED TRIBES 8i 
 
 world and having little to excite the cupidity of others, they 
 are not often forced to fight, but they are reputed courageous 
 and vigorous when put to the test.^ 
 
 It appears that life in the hunter or fisher state tends to 
 individuality and the absence of social organization. It is 
 believed that no instance can be cited of a race of people, 
 living exclusively from hunting or fishing and the spontan- 
 eous products of the earth, that has passed the stage of simple 
 tribal organization. Though the civilized man can readily 
 perceive the advantages that might accrue to them from con- 
 cert of action, conditions are not such as to develop it, and 
 probably, if once developed, any form of extensive organiza- 
 tion would soon fall in pieces without a marked change in 
 the habits of the people. Among the very lowest promiscu- 
 ous intercourse is the rule, and the whole burden of rearing 
 the young is cast on the mother. In a great majority of in- 
 stances, where a permanent relation is recognized as existing 
 between the man and woman, the latter is treated as a slave 
 and forced to bear his burdens as well as her own and those 
 of her offspring. 
 
 The natives of Australia appear to have been below the 
 average of the American Indians in most respects. It is said 
 that they did not till the soil at all, their habitations were of 
 the most crude and temporary character, being mostly of bark 
 or brush. In the manufacture of weapons and implements 
 they exhibited little skill or ingenuity, having no knowledge 
 of metals or skill in weaving fabrics. They did not know the 
 use of the bow and arrov;, the almost universal weapon of 
 primitive man, yet the boomerang, a most curious invention 
 unknown elsewhere, is their peculiar weapon. In government 
 they do not appear to have ever advanced beyond the tribal 
 stage, with very little power in their chiefs. As with most 
 savages the women are oppressed and enslaved by the men 
 and family ties are very weak. 
 
 In attempting a close study of the development of the first 
 
 ^ For a more full statement of the various customs cencerning the rela- 
 tions of the sexes see Brissaud's "History of French Private Law." Con- 
 tinental Legal History Series, Vol. 3, p. i. 
 
82 EVOLUTION OF GOViERXMEXTS AiND LAWS 
 
 steps toward the formation of a government, we are met by 
 a surprising complication of difficulties. Savage tribes can 
 furnish no accurate history of their own development. The 
 moment they are brought into close contact with superior 
 people, the course of their development is affected to a greater 
 or less degree by the extraneous influences to which they are 
 subjected. Habits of Hfe, fashions in dress and modes of 
 warfare are quickly adapted to new conditions. Thus in 
 America those who describe the Comanche Indian place him 
 on horseback, though the horse was first. brought here by the 
 white man. Blankets and beads were worn by the natives of 
 the eastern and middle states long before the revolutionary 
 war, and a description of an Indian costume without them 
 was hardly complete, though the material came from Europe. 
 Guns and knives soon supplanted bows and tomahawks. 
 Again the wars and migrations of tribes, the changing con- 
 ditions and vicissitudes under which they lived, afford no op- 
 portunity to study a continuing development of a particular 
 tribe or nation. 
 
 Few if any American Indians can now be found whose 
 character, customs and even tribal organizations have not been 
 changed and moulded by the influence of the whites. Those 
 that have remained near their ancestral homes have little left 
 of the character or habits of their wild ancestors. Those 
 that have been removed to western reservations have also felt 
 the effects of the teachings and examples of the whites, often 
 to their destruction. This frequent and extreme subjection 
 to vicissitudes is, however, a characteristic of the savage state, 
 and no one need ever hope for an opportunity to calmly study 
 the development of any savage people, uncontaminated by 
 contact with more civilized people for many consecutive gen- 
 erations. The reason for this is plain. Steady development 
 demands steady conditions. Not only were the Indian tribes 
 subject to destruction at the hands of their enemies, but their 
 indolence and improvidence left them constantly liable to 
 famine, which often depopulated their villages. 
 
 The rudimentary society is always domestic in character, 
 but usually it is the rule of the strong male over the female 
 
UNORGANIZED TRIBES 83 
 
 slave. In all quarters of the globe warlike savages have been 
 accustomed to enslave prisoners whom they did not kill. Yet 
 the custom of adopting even prisoners of war to whom the 
 captor chances to take a liking is not uncommon. This was 
 the settled policy of the Iroquois and a great source of 
 strength. The slavery is generally temporary in character, 
 resulting soon in death or emancipation of the slave. The 
 habits of life of the savage are not such as to admit of the 
 propagation and preservation of a servile race. In our efforts 
 to generalize the earliest appearances of social organization, 
 we are liable to take up a preconceived theory and proceed 
 with a smooth and logical narration of orderly development. 
 But, when we attempt to cite authorities and demonstrate the 
 correctness of our theories from known instances, we are 
 met with innumerable perplexities and apparent contradic- 
 tions. Observers who are ignorant of the language of the 
 people they attempt to describe often give most unsatisfactory 
 accounts. They report what they see and often fill out their 
 descriptions with what they infer to be true. But as we pro- 
 ceed we shall find that these difiiculties attend the study of 
 the development of governments in all forms and stages in a 
 marked degree, and that the human capacity and desire to 
 choose and invent leads to most perplexing want of uniform- 
 ity in the development of socia4 order. While the earliest 
 form of mastery and rulership of a permanent character ap- 
 pears to be domestic and a personal mastery of one over an- 
 other, the next step generally has its foundation in war. 
 
 Attthorities 
 
 Bancroft : Native Races of the Pacific States. 
 Schoolcraft : Indian Tribes of the United States. 
 Encyclopaedia Britannica — passim. 
 
CHAPTER II 
 
 Tribal Organizations and Simple Despotisms 
 
 Passing from our imperfect view of the most low and 
 repulsive specimens of human beings to those possessing more 
 intelligence and exhibiting tendencies toward social organi- 
 zations, we find everywhere that customs, superstitions and 
 fashions precede governments and laws. The tribal organi- 
 zations of hunters and fishers do not possess the true at- 
 tributes of government, in the sense in which it is used by 
 civilized man, to as great an extent as one of the many great 
 corporations of modern times. The authority of the chiefs 
 is hardly more than advisory. Matters affecting the tribe are 
 usually determined by public assemblies, and war parties are 
 made up of volunteers who submit to neither discipline nor 
 command. Yet everywhere and even among the very lowest, 
 customs, ceremonies and fashions are found to exist, the ob- 
 servance of which is compelled by public sentiment. These 
 are often most cruel and unnatural. Let us examine some of 
 them. 
 
 The custom of perforating the lips, nose and ears, of cut- 
 ting off fingers, making incisions in the flesh and inserting 
 most unsightly ornaments in lips, nose and ears is common 
 with more or less variation among American Indians, Afri- 
 can tribes and Polynesians. Thus the Thlinkeet women slit 
 the under lip and gradually enlarge the opening until a large 
 block of wood is inserted from two to six inches in length and 
 from one to four inches in width and half an inch thick. It 
 is so large that when withdrawn the lip falls over on the chin. 
 
 The Koniagas and Thlinkeets imprison girls arriving at the 
 age of puberty in huts so small as to keep them continually in 
 a cramped position for six months or even a year. Dances 
 and feasts of various kinds are characteristic of savages every- 
 where. Love of ornament seems to precede a desire for cloth- 
 
 84 
 
TRIBAL ORGANIZATIONS AND SIMPLE DESPOTISMS 85 
 
 ing. Thus in many parts of the world savages may be found 
 tattooed, painted, adorned with feathers, quills, rings, shells, 
 stone and wooden ornaments, often hideous in appearance to 
 the stranger, but rigidly exacted by custom, while covering 
 for decency or comfort is not thought of. The Indians of 
 North America were remarkably formal and ceremonious in 
 all their negotiations and consultations. Their grand councils 
 are sometimes described as models of decorous procedure. 
 Marriage ceremonies were not generally very formal, and the 
 bond of union often not of great force. Polygamy was gen- 
 erally allowed, but monogamy was the rule. They were un- 
 doubtedly far more lax in morals than the whites, yet the 
 difference is still of degree. The Indian lodges among the 
 leading tribes sheltered families where continency and affec- 
 tion were not wholly unknown. Among them there were 
 marked differences as well in moral character as in mental 
 capacity. The curious custom of dividing the tribes by totems 
 was not a mere whim but had its foundation in a sound policy, 
 and the rules relating to marriages based on it tended to check 
 too close in and in breeding, likely to occur where people 
 were divided into such small societies. Funeral rites were 
 often impressive and proportioned to the estimation in which 
 the deceased was held. Medicine men imposed on the igno- 
 rant with their charms, incantations, and absurd remedies, yet 
 the medicinal properties of some plants were known and with 
 all their filthiness the natives of the Pacific coast appreciated 
 the value of a hot bath, for which most tribes provided a crude 
 bath-house. Alcholic stimulants seem to have been wholly 
 unknown to them. Their only intoxication was that resulting 
 from war dances, superstition and bloodshed, by which at 
 times they were wrought to a state of frenzy. Tobacco was 
 much used and stupor and sickness often resulted from their 
 gluttony at feasts. Undoubtedly the wild tribes of America 
 exhibited, over an extensive area and under diverse circum- 
 stances, the first beginnings of organized societies more com- 
 pletely than any other people. While many variations of 
 manners and customs are to be noted, there was a marked 
 similarity in their crude tribal organizations, clearly traceable 
 
86 EVOLUTION OF GOVERNMENTS A)ND LAWS 
 
 to their habits of Hfe and environments. The Indian was 
 first and mainly a warrior, but to hve he must hunt and fish. 
 Though most of the eastern tribes raised a httle corn and 
 some few other vegetables, they still relied mainly on game 
 for their subsistence. 
 
 Their only conception of title to land was for a hunting 
 ground and temporary occupancy. This title each tribe was 
 called on to maintain against the encroachments of hostile 
 neighbors. With their habits of life, a dense population 
 could not be maintained nor a large city be built. Their 
 property consisted only of weapons, temporary movable 
 lodges and spoils of the chase, supplemented by crude house- 
 hold utensils made from wood or stone. Moneys and reve- 
 nues they did not know. In seeking to understand their 
 government it is of first importance to know what could be 
 governed. This ordinarily was a village of a few lodges, 
 seldom more than one hundred. The people of the village 
 were mostly related by blood and marriage. Whenever oc- 
 casion required they could easily come together for consulta- 
 tion. Each was known to the other. Personal prowess in war 
 and in the chase, as well as eloquence and wisdom in council, 
 were quickly discerned and understood by all. There was 
 a strong tendency to community of enjoyment of game taken 
 and crops gathered. Under these circumstances leadership 
 was accorded to him who gained the approbation of his fel- 
 lows. A chief was a natural leader, chosen by his comrades. 
 As a ruler however he scarcely exercised any of the attributes 
 of sovereign power. He could not levy taxes, but was ex- 
 pected to generously distribute the game he secured. He 
 had no lands yielding rent. He could not make laws' for the 
 people or declare war or make peace for them. All such mat- 
 ters were referred to grand councils. His war party as a 
 rule was made up of such as chose to follow him. In battle 
 much more depended on individual craft and bravery than on 
 generalship. Here and there throughout history we learn of 
 leaders who exhibited a capacity for organization and general- 
 ship, and who were able to impress on scattered tribes the ad- 
 vantages of combination and concert of action for mutual 
 
TRIBAL ORGANIZATIONS AND SIMPLE DESPOTISMS 87 
 
 protection. These combinations usually fell in pieces at the 
 death of the leader. 
 
 The famous Iroquois confederacy is an example of a more 
 enduring and efficient combination, which enabled the six 
 nations to maintain their hold on the rich hunting grounds and 
 well stocked lakes and streams of New York against all hos- 
 tile tribes. Their superiority over hostile tribes was due to 
 their superior combination and nothing but the irresistible 
 march of the whites was able to destroy them. 
 
 The Comanches also evidenced some capacity for organi- 
 zation and maintained a powerful confederacy. Neither of 
 these confederacies however presents much semblance of a 
 government. The levy of taxes and expenditure of the money 
 by public officers, which plays so great a part in all advanced 
 states, was unknown. The members of the tribes were all 
 warriors with no other calling to interfere. A levy of forces 
 was a levy en masse, and public sentiment was always suffi- 
 ciently powerful to drive every ablebodied man to seek dis- 
 tinction in war. While the women and children were usually 
 left in a place of comparative safety, when war parties were 
 out the organization of society was not greatly changed. All 
 drudgery was done by the women in peace as well as in war, 
 and feasts and famines alternated, whether the males were 
 on the war path or in the lodges. 
 
 The ancient Germans as described by Caesar and Tacitus 
 present many points of resemblance to the Indians in customs 
 and environments as well as in social organization, though in 
 a much smaller territory. Tacitus says : "I concur in opinion 
 with those who deem the Germans never to have intermarried 
 with other nations; but to be a race pure, unmixed and 
 stamped with a distinct character. Hence a family likeness 
 pervades the whole though their numbers are so great; eyes 
 stern and blue, ruddy hair, large bodies, powerful in sudden 
 exertions, but impatient of toil and labor, least of all capable 
 of sustaining thirst and heat, cold and hunger they are ac- 
 customed by their climate and soil to endure."^ 
 
 *Tt is well known that none of the German nations inhabit 
 
 ^ Tacitus, Germany C 4. 
 
88 EVOLUTION OF GOVERNMENTS AiND LAWS 
 
 cities or even admit of contiguous settlements. They dwell 
 scattered and separate as a spring, a meadow or a grove 
 chance to invite them. Their villages are laid out, not Hke 
 ours in rows of adjoining buildings; but everyone surround- 
 ing his house with a vacant space either by way of security 
 against fire or through ignorance of the art of building. For 
 indeed they are unacquainted with the use of mortar and 
 tiles, and for every purpose employ rude misshapen timbers, 
 fashioned with no regard to pleasing the eye." They also 
 dug and inhabited caves.- 
 
 *Tn the election of kings they have regard to birth; in that 
 of generals to valor. Their kings have not an absolute or un- 
 limited power; and their generals command less through the 
 force of authority than of example. If they are daring, ad- 
 venturous, and conspicuous in action, they procure obedience 
 from the admiration they inspire. None however but the 
 priests are permitted to judge offenders, to inflict bonds or 
 stripes, so that chastisement appears, not as an act of mili- 
 tary discipline, but as the instigation of the god whom they 
 suppose present with warriors."^ They were great gamblers. 
 "On affairs of small moment the chiefs consult; on those of 
 greater importance the whole community, yet with this cir- 
 cumstance that what is referred to the decision of the people, 
 is first maturely discussed by the chiefs."* 
 
 The real power seems at all times to have been in the gen- 
 eral assembly which listened to orators and leaders and gave 
 weight to the counsels of such as it chose to follow. Prowess 
 in arms was always the main source of distinction and war 
 was the only real business of life. Their scanty clothing was 
 made largely from the skins of wild beasts and that of both 
 men and women was fashioned substantially alike. They 
 were extremely hospitable both to strangers and acquaint- 
 ances. As with all tribes which have not reached the com- 
 mercial stage, they were fond of giving and receiving 
 presents. In agriculture they do not appear to have pro- 
 gressed farther than the Creeks, Cherokees or Navajos at 
 
 'Id.C i6. 'Id. C 7. *Jd.Cii. 
 
TRIBAL ORGANIZATIONS AND SIMPLE DESPOTISMS 89 
 
 the time of the advent of the white man, nor in architecture 
 or the manufacture of clothing and household utensils. The 
 description so far given of the Germans in the time of Caesar 
 and Tacitus would apply very well to most of the more id- 
 vanced and vigorous Indian tribes at the time of their first 
 contact with the whites. Let us note the leading points of 
 difference. The Germans had horses and cattle. They made 
 beer and the tribes near the Rhine also used wine. They 
 drank to excess. They used iron for their weapons. They 
 had fixed customs with reference to the use of land for til- 
 lage, but which hardly amounted to an assertion of title even 
 in the tribe. Though subject to the vicissitudes of war and 
 sometimes driven from place to place, they were less mi- 
 gratory than the Indians. They were more cleanly and bet- 
 ter fed, having the advantages of milk, cheese and the flesh 
 of their cattle. The most marked and important characteristic 
 of their manners, as described by Tacitus and concurred in 
 by all the early writters, is the purity of their domestic rela- 
 tions, the care taken in rearing their young and preserving 
 their strength. Chastity is seldom characteristic of barbarous 
 races, but, in this particular, their manners were in striking 
 contrast with those then prevailing in Rome. In the develop- 
 ment of government it is apparent that the Germans at the 
 time of our first introduction to them were in substantially the 
 same stage as the Comanches, Iroquois and other more ad- 
 vanced tribes of the north at the time of the discovery of 
 America. 
 
 The incipient stages of government everywhere exhibit 
 either voluntary association for a common purpose or the 
 despotic rule of the strong. In the former case the authority 
 terminates with the necessity calling it into existence, and in 
 the latter is dependent on the capacity of the master to main- 
 tain his supremacy. In either case the authority exercised is 
 arbitrary in character and not exercised in accordance with 
 any established rules. 
 
 Among the American Indians the organizations were 
 largely voluntary in character. In Africa despotic tendencies 
 predominate. The savage tribes of Africa are not less given 
 
90 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 to bloodshed than the Indians, but possibly a little less in- 
 clined to inflict cruel tortures on enemies, equally violent in 
 temper, but rather warmer in attachment, equally warlike, 
 but more inclined to fight in the open and on even terms. 
 
 In making provisions for the future, the African tribes are 
 far superior to the Indians. Even the most fierce and inde- 
 pendent tribes cultivate the soil to good purpose, raising large 
 variety of vegetables and fruits and also keep cattle, goats, 
 fowls, etc. from which they are supplied with meat, milk, 
 butter, eggs, etc. This is especially true of the stalwart tribes 
 and nations dwelling in the great lake region of equatorial 
 Africa. The Hottentots, often mentioned as of a very low 
 type, tilled the soil and kept their herds. In manufactures 
 workers in iron are found by travelers in the heart of the 
 continent. 
 
 The classification often made of the stages of progress of 
 the race, based on the nature of the implements used, will not 
 hold good to any degree whatever as a classification of social 
 development. The stone age, the bronze age, the iron age, 
 are supposed to name the successive stages of human pro- 
 gress, and in the development of the arts doubtless do, but in 
 moral and social development they indicate nothing. Nor 
 are the designations as hunters, shepherds and tillers of the 
 soil more expressive in these respects. Along the great Congo 
 and its tributaries are to be found many tribes which have 
 passed all these stages, having their flocks and herds, their 
 gardens, and fields of grain and fruits, which evidence con- 
 siderable skill in the manufacture of household implements, 
 boats, nets, etc. and also forge iron, from which they make 
 knives, spears and other weapons, yet morally these people are 
 among the most depraved. They are horrible cannibals. 
 They are thieves and robbers as well as murderers at all times. 
 Domestic virtue is unknown. Some tribes eat the old people 
 when they cease to be capable of taking care of themselves, 
 if we may believe the accounts of travelers. With a great 
 part of them the governmental growth does not extend far- 
 ther than tribal organization with no substantial power in 
 the chiefs. 
 
TRIBAL ORGANIZATIONS AND SIMPLE DESPOTISMS 91 
 
 Throughout Africa all governments seem to be merely an 
 extension of the relation of master and slave. Though pos- 
 sessed of strong and vigorous bodies, of considerable skill 
 and industry in providing for bodily comforts, of courage 
 as well as cunning in war, they are sadly deficient in social, 
 virtue. From the small weak tribe, struggling for existence 
 against its enemies, to the powerful kingdoms like Uganda 
 Unyoro, Dahomey and Abyssinia, all authority is exercised 
 unchecked by law. Whatever the ruler does is in accordance 
 with his individual will. Where the power is conceded the 
 mode of its exercise is never questioned. When the king of 
 Uganda sees fit to depose some one he has elevated to a high 
 position, he sends a favorite with a sufficient following to 
 ''eat him up," which means that the obnoxious one is killed 
 and his wives, slaves, cattle and property are confiscated and 
 given to whomsoever the despot wills. The practice of poly- 
 gamy is limited only by poverty. A great despot like the 
 king of Dahomey may far outclass even the great Solomon 
 in the number of his wives. The mode of administering the 
 greatest of their governments is exceedingly simple. Where- 
 ever the king acts directly on his subjects, he rules as an 
 absolute despot, enforcing his commands summarily by seiz- 
 ing property or person and taking life according to his humor. 
 Where he acts through subordinates whom he cannot oversee, 
 the same despotic power and discretion is exercised by the 
 underling, who is only restrained by fear of displeasing the 
 king. The horrible cruelty so often exhibited by these despots 
 would seem such an intolerable evil that anarchy would be 
 preferable. Yet, comparing the conditions of the people in 
 the strong states with those of the scattered tribes, we find 
 that even such a despotism exists because it is better than no 
 government. Scattered villages, unprotected by any strong 
 combination, are surprised and destroyed by some marauding 
 tribe. Peace and plenty for a generation in some spot may 
 be followed by partial or total destruction in a day. This 
 has been the history of wild tribes everywhere from the 
 earliest times of which we have any account. Tribe against 
 tribe in battle to the death from generation to generation has 
 
92 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 been the history of the race. The hunters of America, relying 
 mainly on game and spontaneous products, were kept con- 
 stantly reduced in numbers by fierce wars and frequent fam- 
 ines. The Africans with far better food supplies multiplied 
 faster and developed more industry, yet bloody and devastat- 
 ing wars seem to have been not less frequent with them. The 
 effect of organized government everywhere has been to check 
 tribal wars, to encourage industry, and to increase population. 
 Though a large country be at war, there is peace to all save 
 those in and about the scene of the struggle. The great na- 
 tion too is not likely to be more frequently at war than the 
 small tribe and the percentage of destruction of those en- 
 gaged generally increases in inverse ratio to numbers. 
 
 The African race throughout all ages has demonstrated its 
 ability to survive and even increase in contact with the other 
 races. Although northern Africa has been subject to the 
 influence of European and Asiatic civilization from the ear- 
 liest times, it still retains its distinctive characteristics, and 
 the negro type dwelling south of the great desert exhibits 
 scarcely a trace of intermixture with the whites. Along the 
 eastern coast it is true that the Arabs have intermixed and 
 modified the type to some extent, but the predominant char- 
 acteristics are distinctly African. The civilization of ancient 
 Egypt does not appear to have ever ascended the Nile far 
 beyond the desert, but it is probable that knowledge of agri- 
 culture and the art of forging iron has spread over Africa 
 from Egypt and Arabia. 
 
 In comparatively recent times European civilization has 
 taken a firm hold in south Africa and is rapidly extending 
 toward the north. To what extent the African will give way 
 and vanish before the Caucasian in the Tropical regions re- 
 mains to be seen. In America it has been demonstrated that 
 the negro multiplies both while in the condition of a slave 
 to the white and as a free man. Everywhere and under all 
 conditions he exhibits strong attachment to his offspring and, 
 while lecherous, is still warm in domestic and friendly attach- 
 ments, and often exceedingly kindly in disposition when his 
 passions are dormant. In physical development the black 
 
TRIBAL ORGANIZATIONS AND SIMPLE DESPOTISMS 93 
 
 man can not be classed as clearly inferior to the white. 
 Though some tribes are dwarfed and illformed, the great 
 majority are equal in size and strength to the best developed 
 Caucasians. Why they should have made so little progress 
 in constructing governments and enacting laws is an inter- 
 esting subject of inquiry. Except where brought in direct 
 contact with some superior race, they seem never to have 
 learned any system of writing and, as we have seen, their 
 only idea of government has been that of arbitrary personal 
 authority, unrestrained by law or settled custom. Though in 
 the region of the great lakes the natives cultivate the land, 
 often to a high degree, Livingston, Stanley and other travelers 
 fail to inform us of any system of laws governing land ten- 
 ures. The chief or king may decide disputes between con- 
 flicting claimants, but he does so according to his own caprice 
 rather than by any settled law. The marvelous fertility of 
 the soil, the extent of unoccupied land and the frequent de- 
 struction of communities by war, seem to afford a continual 
 outlet for any increase of numbers. It may be that a close 
 study by a careful observer would disclose more in the nature 
 of settled principles of government among them than the 
 writings of hasty travelers record, but it seems clear that 
 their conceptions of rules of property and laws governing the 
 conduct of individuals toward each other, except where modi- 
 fied by contact with other races, are not in advance if really 
 equal to those of the American Indians. 
 
 Intermediate the prevailing tribal organizations of America 
 and the highly developed governmental systems of the Mexi- 
 cans and Peruvians, were many nations advanced somewhat 
 above the common level of the rude tribes. The Comanches 
 presented an advanced type of the Indians who occupied most 
 of the North American contient, well formed and vigorous in 
 physique, brave and warlike, hospitable in peace, fierce and 
 cruel in war. They were nomads. They held public councils 
 at regular intervals to discuss public matters, make laws and 
 punish crime. The majority ruled. Laws were published 
 by a crier. Justice was administered by a council of the 
 tribe whose sentence was carried into execution by the chiefs. 
 
94 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 A system of signals by fire and smoke was used to call their 
 forces together in case of need. In war they were formid- 
 able and could bring to the field a force of several thousand. 
 Crimes were punished rigorously and toward each other they 
 were peaceable. Their treatment of women was in accordance 
 with the usual customs of savages. Wives were bought and 
 made drudges for their husbands and polygamy prevailed. 
 No attention was paid to agriculture, but the vast herds of 
 buffaloes on the plains afforded an ample supply of meat. 
 The Navajos, Mojaves and Yumas were more peaceful and 
 industrious in their habits. They cultivated the soil and 
 raised ^corn, wheat, beans, pumpkins, melons and other vege- 
 tables. The Mojaves built substantial dwellings of very pecu- 
 liar construction, and cylindrical granaries. Some tribes en- 
 tered their dwellings from the top, having neither doors nor 
 windows. The Navajos were shepherds, and their blankets 
 have become noted. In the far northwest the natives showed 
 a tendency to more settled modes of life and to class distinc- 
 tions. The Nootkas, Chinnooks and Thlinkeets built large and 
 substantial dwellings of wood, sufficient in size for many 
 families occupying separate apartments. Property in these 
 homes was recognized as vested in those who combined to 
 build them. The villages of the Nootkas were regularly laid 
 out. Something like hereditary rank was recognized, though 
 the head chief had little real power except over his slaves. 
 A sort of nobility existed, based on individual distinction in 
 war or social liberality. Among the Thlinkeets and Haidahs 
 the power of the chiefs is said to have been despotic at times. 
 All the Northwestern tribes held slaves and had notions as to 
 property rights. Though instances may be cited of arbitrary 
 power exercised by Indian chiefs, the prevailing genius was 
 that of liberty and equality. Personal prowess was the source 
 of distinction, and recognized individual merit the commis- 
 sion of leadership. The cunning of the medicine man, work- 
 ing on the ignorance and superstition of the members of the 
 tribe, gave him influence, but little real authority. No priestly 
 class. appears to have developed except in the advanced states 
 of Mexico and Peru. 
 
TRIBAL ORGANIZATIONS AND SIMPLE DESPOTISMS 95 
 
 Authorities 
 
 Schoolcraft: Indian Tribes of the U. S. 
 
 Tacitus : Germany. 
 
 David Livingston : Travels and Researches in Africa, Last 
 Journal. 
 
 H. M. Stanley: Through the Dark Continent, In Darkest 
 Africa, Through the Great Forest. 
 
 Elisee Reclus : Africa. 
 
 Hugh Murray: The African Continent. 
 
 Joseph Thomson: Through Masai Land. 
 
 Caleb Atwater: Indians of the Northwest. 
 
 Stephen Powers: Tribes of California. 
 
 H. H. Bancroft: Native races of the Pacific States. 
 
 John Thos. Short: The North Americans of Antiquity. 
 
 S. G. Drake: Aboriginal Races of North America. 
 
 S. G. Goodrich: History of the Indians of North America. 
 
 Henry Alexander: New Light in Early History of North- 
 west. 
 
 Louis Hennepin. 
 
CHAPTER III 
 
 Pacific Islands 
 
 The social state of the natives of the Pacific Islands pre- 
 sents a most curious study. Their character as depicted by 
 the- early discoverers is contradictory. This however is largely 
 true of all savages. At times they appear as gentle, kindly, 
 hospitable and peaceful, at other times as fierce, treacherous, 
 vicious and murderous. That they were mostly cannibals is 
 beyond doubt, yet they generally lived under conditions af- 
 fording abundant and varied food supplies. They tilled the 
 soil, raised pigs and fowls and in most 'parts recognized in- 
 dividual ownership of the soil. Though scattered over numer- 
 ous islands distant thousands of miles from each other, the 
 people appear to be of one race and their language and cus- 
 toms are surprisingly similar from Hawaii to New Zealand. 
 The ignorance of Europeans of their ideas and superstitious 
 observances of the laws of taboo have doubtless led to many 
 exhibitions of fierceness by the natives, the reason of which 
 has not been understood by Europeans. The violation of a 
 taboo by taking a sacred thing or invading a sacred place 
 aroused the otherwise peaceful islander to murderous frenzy. 
 Kingly authority, class distinctions and slavery appear to have 
 been general in their system, which is spoken of by some as 
 based on castes. 
 
 In some respects they are, according to European ideas, to 
 be classed as among the lowest types of mankind. They went 
 naked and ate human flesh. Yet they recognized govern- 
 mental authority and rights of property. These were upheld 
 by intricate religious or superstitious observances of taboos, 
 which made sacred to the use of the king all things which he 
 touched and, lest the property of the subject should become so, 
 forbade him to use anything but his own. With them, as 
 with all savages in moderate climates, the body was disfigured 
 
 96 
 
PACIFIC ISLANDS 97 
 
 for ornament, and the idea of making clothing for comfort 
 does not appear to have suggested itself. Owing to the small 
 size of the islands and the distance of one from another, the 
 authority of a king seldom extended far and the number of 
 people under one soereign was necessarily small in compari- 
 son with even the larger African despotisms. Still it was 
 not uncommon for a king to rule a whole group of islands. 
 New Zealand affords a comparatively wide field, but does 
 not seem to have developed a higher type of government. 
 Numerous chiefs having little real power led the people in 
 their wars. Having no money there were no taxes, but there 
 were slaves. Having no knowledge of the use of letters they 
 had no written laws, but their customs and superstitions, 
 taught orally, were quite complicated. There was little basis 
 for commerce, as the products of all the neighboring islands 
 were substantially alike, and the fish of the sea were equally 
 accessible to all. Manufacturing was mostly limited to build- 
 ing huts, boats and making weapons and fishing tackle. The 
 similarity of the people and their customs on so many islands, 
 so remote from each other, is very striking. While on the 
 continents tribes differing radically in language, customs, 
 character and appearance are often found in close proximity 
 to each other, the people of Hawaii and New Zealand, though 
 separated by sixty degrees of latitude, seem clearly of the 
 same race. 
 
 As with nearly all the lower races the women bore th'e heav- 
 iest burdens. The taboo prohibited her from partaking of the 
 flesh of pigs and fowls and from feasts of human flesh. En- 
 forced by superstitious fears as well as physical force, the 
 taboo operated as a powerful aid to the authority of the ruler 
 and exercised a wide influence on the conduct of the people. 
 It was in effect a most peculiar system of laws, having little 
 similarity to anything found in continental regions. The 
 taboo of the king or chief rendered not only his person and 
 property sacred but even his name. This was a recognition 
 of his divine right far surpassing that of European kings. 
 The idea of the sanctity of priests, churches and sacred places 
 is similar only in a slight degree to the idea of absolute ex- 
 
98 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 clusiveness imposed by the taboo. As applied to the matri- 
 monial relation the wife was taboo to all but her husband. 
 For savages this was quite a close approximation to the idea 
 of the sacredness of the marriage relation. 
 
CHAPTER IV 
 
 Mexico 
 
 The governmental systems of the inhabitants of the Mexi- 
 can plateau differed, not merely in degree of development, but 
 radically in character, from the tribal organizations and con- 
 federacies of the wild races of the north. The Tlascalans 
 seem to have retained more of the traits and characteristics 
 prevailing among northern tribes than their more numerous 
 neighbors. Prescott speaks of Tlascala as a republic, but, if 
 such, it was of a most peculiar sort. The principal authority 
 was vested in four chiefs, each of whom had his separate 
 district, parcelled out among sub-chiefs, who held by a tenure 
 similar to that of the feudatory vassals of Europe, and were 
 hound to render military service to their chiefs, as well as to 
 supply their tables. The affairs of the general government 
 were settled by a council consisting of the four principal chiefs 
 and the inferior nobles. The domains of the sub-chiefs were 
 parcelled out among their retainers, who were bound to render 
 them like service as that they gave their superiors. The bond 
 of union appears to have been very firm and was well main- 
 tained. In the city, order was preserved by a municipal police. 
 Military prowess was the source of greatest distinction, and 
 a rank corresponding with knighthood was conferred on those 
 exhibiting especial merit. The lowest order of people appear 
 to have been held in a condition not unlike the European 
 peasants of feudal times. 
 
 The darkest aspect of Aztec life was the bloody and gloomy 
 religion, the cruel rites of which constantly characterized the 
 deity as savage, remorseless and devoid of love or pity. The 
 custom of eating human flesh is only reconcilable with the 
 otherwise high state of civilization attained, as an ordinance 
 of their horrible superstition. Their war god, like the war 
 gods of all people in all times, taught lessons of cruelty and 
 forbade all exhibitions of pity or kindness toward enemies. 
 
 99 
 
100 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 The government of the Aztecs was an elective monarchy. 
 The sovereign was selected from the brothers of the deceased 
 monarch or in default of them from his nephews. The choice 
 was made by four of the principal nobles, designated for that 
 purpose by their own order in the preceding reign. This sys- 
 tem appears far better calculated to place a meritorious prince 
 on the throne than the prevailing system in modern Europe, 
 which places the crown arbitrarily on the eldest son of the 
 deceased monarch without regard to merit. It also avoided 
 the necessity for a protector ruling in the name of an infant 
 king, for among those eligible there would seldom fail to be 
 an adult. The electors, taken from the leading men of the 
 nation, were familiar with the character of all the princes and 
 in a position to make the best possible selection. This system 
 is doubtless due to the democratic ideas which prevailed among 
 the aborigines of America, and to their settled custom of 
 awarding power and leadership only to such as exhibited 
 capacity for it. The results fully demonstrated its wisdom, 
 for their kings were men of conspicuous ability. The king 
 was not only the chief executive and commander-in-chief of 
 the army, exercising direct authority over the principal nobles, 
 who were required to render him personal service at his 
 palace and in his body guard, but he also exercised the legis- 
 lative function. This he did in a manner far in advance of 
 the methods of African and many Asiatic despotisms. The 
 laws promulgated were registered and exhibited to the people 
 in picture writings. They were of course adapted to the con- 
 ditions of the people, and show evidences at the same time of 
 enlightened policy and savage cruelty. Murder and adultery 
 were punished with death. Thieves were either enslaved or 
 put to death. Among capital offences were numbered re- 
 moving the boundaries of anothers land, altering the estab- 
 lished measures, and misconduct of guardians in dealing with 
 the property of their wards. Prodigals and drunkards were 
 severely punished. The marriage relation was clearly com- 
 prehended and its sacredness recognized and protected. Di- 
 vorces could only be obtained by decree of a court having 
 jurisdiction solely of domestic affairs, after a full and patient 
 hearing of the parties. 
 
MEXICO loi 
 
 Slavery existed among them, but in the least objectionable 
 form in which it has existed anywhere. Its subjects were 
 prisoners of war, who however were almost invariably sacri- 
 ficed rather than enslaved, criminals, public debtors and poor 
 persons who sold themselves or their children. The services 
 to be exacted were limited with precision. The slave was 
 allowed to have his own family and property, even other 
 slaves. His children were free. There was no such thing as 
 hereditary slavery, and sales of slaves were rare. The sepa- 
 ration of the judicial power from the executive and legislative 
 evinces a comprehension of the principles of good government 
 hardly to be looked for. Over each of the principal cities and 
 its tributary country there was a supreme judge, appointed by 
 the king, but holding his office for life. He had jurisdiction 
 in both civil and criminal causes. There was an inferior 
 court in each province, composed of three members, having 
 concurrent jurisdiction in civil causes. In criminal cases an 
 appeal lay to the supreme judge. Besides these there were 
 inferior magistrates throughout the country, chosen by the 
 people of the districts and having jurisdiction in minor causes. 
 There were also inferior censors, elected by the people, whose 
 duty it was to watch over a certain number of families and 
 report any infraction of the laws. In Tezcuco a general meet- 
 ing of all the judges throughout that kingdom, presided -over 
 by the king, was held every eighty days at the capital for the 
 determination of causes of first importance. This general 
 court also acted as a grand council of state. For a judge to 
 receive a bribe was punishable with death. The judges were 
 supported from a part of the produce of the crown lands set 
 apart for that purpose. They wore official robes and worked 
 full days. Officers corresponding to sheriffs and bailiffs were 
 in attendance to preserve order, summon parties and wit- 
 nesses. Lawyers do not appear to have been in favor and 
 are not mentioned in connection with the proceedings of the 
 courts. In criminal causes the accused was allowed to testify. 
 The testimony and proceedings were taken down by the clerk 
 in hieroglyphical painting and delivered to the court. 
 
 In the art of levying taxes, as in all other branches of the 
 
102 EVOLUTiO'lN OF GOVERNMENTS AND "LAWS 
 
 science of government, the Aztecs were far in advance of all 
 savages. Besides the revenue from crown lands, services in 
 building the kings palaces and buildings were exacted from 
 laborers dwelling in the adjacent territory. Tribute in kind 
 was required from farmers and manufacturers, and the table 
 of the monarch and his retainers was abundantly supplied by 
 his subjects. His granaries were filled with corn and his 
 warehouses with cotton cloths and feather robes, arms, armor 
 and utensils collected by his tax gathers from all parts of the 
 empire. In fact every variety of product for use or ornament 
 was collected for the king. 
 
 Any description of the Mexican government which ignores 
 the priesthood leaves out the most characteristic part. The 
 influence of the priests on the policy, as well as on the man- 
 ners and morals of the people, was of first importance. The 
 chief priests were not only at the head of a vast religious 
 establishment, numbering thousands of inferior members, but 
 at the same time superintended the educational system of the 
 empire and exercised a most potent influence on the policy of 
 the king. To supply the thousands of human victims, who 
 were sacrificed during each year to their cruel gods, it was 
 necessary to wage war and bring in captives. At the behest 
 of the priests the monarch was often influenced to put the 
 armies into the field. Thus the empire was extended, at the 
 expense of neighboring tribes, and victims were supplied for 
 the sacrificial stone. 
 
 At the head of the religious order were two priests chosen 
 by the king and principal nobles. Below them were others of 
 various ranks and functions in all the towns of the empire, 
 forming a very numerous body. Their teocallis or temples, in 
 great number and many of them of vast size, were thickly 
 scattered about the cities. On the top of the terraced mounds 
 of earth, on which the temple proper stood, the victim was 
 bound on the sacrificial stone, and in sight of the people far 
 and near the priest cut his breast open with a sharp stone, 
 tore out his throbbing heart, held it bleeding to the sun and 
 then cast it at the feet of the idol. The body of the victim 
 was then given to his captor to be served at a great feast 
 given to his friends. 
 
MEXICO 103 
 
 In some respects the religious societies were similar to 
 those of the Catholic Church. They held and tilled great 
 bodies of land, the surplus products of which over what was 
 consumed by them, were distributed to the poor. The priests 
 heard the confessions of the people and granted absolution 
 for their misdeeds. More important, however, than all this, 
 the religious houses were the repositories of learning. To 
 them was due the credit of developing the art of picture writ- 
 ing, and they took charge of the instruction of the young. 
 By this means their doctrines and superstitions were given a 
 strong and lasting hold on the people, especially the nobility, 
 whose children were trained by them. 
 
 In all ages and among all people public ceremonies have 
 played an important part in public affairs and exercised a 
 powerful influence on society. Among the savage tribes of 
 America, feasts, dances and formal councils have afforded 
 the occasion and opportunity for gathering the sentiment of 
 the tribe on public questions, for arousing their passions and 
 starting them on the war path. In imperial Rome the culture 
 and innate savagery of the people were exhibited at the circus. 
 Nero read his verses above the arena whose sands soaked up 
 the blood of martyrs, gladiators and wild beasts. The Mexi- 
 cans exhibited no less strong contrasts in their public cere- 
 monies. Beautiful flowers in tropical profusion, emblems of 
 peace and innocence, adorned the processions which bore vic- 
 tims to the altars of the gods. Innocent babes, gaily decked 
 with beautiful robes and roses, were carried to their doom 
 by chanting priests. At the same time that observance of 
 these most cruel and savage rites was inculcated, the priests 
 taught lessons of private virtue and integrity, obedience to 
 law, industry and thrift. It may be remarked that even their 
 treatment of prisoners was an improvement on that prevailing 
 among the savage tribes with which they were surrounded. 
 The act of cutting open the breast and tearing out the heart 
 was quickly and dexterously performed, and the suffering of 
 the victim soon ended. Let it not be forgotten also, while 
 we are condemning the Aztecs for their barbarity, that, at 
 the same time, the most Christian nations of Europe were 
 
I04 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 breaking heretics on the rack, walHng them up aHve in tombs 
 and applying all the tortures which fiendish ingenuity could 
 devise, for the purpose of preserving intact the authority of 
 the priests and teachers professing to be followers of the 
 meek and lowly Nazarene, who came to bring peace on earth 
 and good will to men. Let us remember that our Puritan 
 ancestors, even at a later day, hung and burned people guilty 
 only of the imaginary crime of witchcraft. Let us bear in 
 mind how heads were lopped off in England and elsewhere 
 for even dreaming the death of the king. Though so ab- 
 horrent to our ideas and feelings, their cannibalism seems to 
 have been prompted by fanaticism rather than foul appetite. 
 
 The number of festivals observed by the Mexicans was 
 very great. Each god received his due honors, and all re- 
 ligious ceremonies were conducted by the priests and ob- 
 served by the people with order and decorum. It is curious to 
 note that under the more ancient civilization of the Toltecs 
 human sacrifice was unknown. Not until the ascendency of 
 the Aztecs had the Inquisition begun its bloody career on 
 the European continent. 
 
 The domestic regulations of the Aztecs were neither of the 
 best nor of the worst. Polygamy was practiced to some ex- 
 tent, especially among the rich, but was not general. Slavery 
 as we have seen existed but in a mild form. On the other 
 hand marriages were celebrated with much ceremony, con- 
 tinency on the part of both sexes was -strongly inculcated, and 
 adultery severely punished. Though children were strictly 
 ruled, especially while under instruction, their parents re- 
 garded them with affection. Wives were not slaves to their 
 husbands, but were their companions and shared with them 
 at feasts and entertainments. Divorce implied disgrace and 
 could only be obtained through a court for cause. Guardians 
 were appointed for orphans and were held to the strictest 
 account in the management of their estates. The principal 
 part of the labor of the fields was performed by the men. 
 Only the lighter kinds of work were done by the women, and 
 it is said that in the division of labor the weaker sex was 
 quite as tenderly regarded as in most parts of Europe today. 
 
MEXICO 105 
 
 The educational and material progress made by the Mexi- 
 cans was such as might naturally be expected from their 
 circumstances. Considerable skill was developed both in agri- 
 culture and in manufactures, but trade hardly passed the stage 
 of local barter. Regular markets were held in the cities on 
 every fifth day, which were attended by a great concourse of 
 people. Different quarters were assigned specially to each 
 kind of commodities and, where barter failed, a kind of cur- 
 rency consisting of quills of gold dust, bits of T shaped tin 
 and bags of cacao of a specified number of grains was used. 
 The precious metals as well as tin and copper were wrought 
 with much skill into useful and ornamental vessels and im- 
 plements of various kinds. The fibre of the maguey and 
 cotton furnished material for the weavers, of which they 
 made good use, and the richest robes were made with feathers. 
 Though their architecture was not of high order, the teocallis 
 and palaces were of great size, and the latter of considerable 
 pretensions for comfort. Post routes were established 
 throughout the empire, with stations at short intervals, and 
 by means of trained messengers dispatches were forwarded 
 with remarkable speed. Picture writing had reached a stage 
 of development that furnished means of communication by 
 writing and orders from the king were so transmitted by his 
 messengers. 
 
 The most marked and surprising evidence of scientific 
 progress was in the correctness of their calendar, in which 
 the length of the year was set down with a very close ap- 
 proximation to absolute accuracy, and the equinoxes and 
 solstices were correctly noted. 
 
 Domestic animals the Aztecs had not. They were therefore 
 total strangers to the shepherd state. The buffaloes of the 
 prairies were never reduced to subjugation by them. The 
 care with which they made provision for future wants in 
 well stored granaries and warehouses is in marked contrast 
 to the improvidence of northern tribes. In their pulque, made 
 from the sap of the maguey, they had an intoxicating drink 
 of which they were excessively fond, but of which only the 
 old people were allowed to partake freely. The diversity of 
 
io6 EVO/LUTION OF GOVERNMENTS AND LAWS 
 
 climate due to difference in elevation afforded a most diversi- 
 fied and prolific flora which they studied with care. Their 
 gardens afforded both useful and beautiful plants in the great- 
 est variety. 
 
 Authorities 
 
 Prescott: Conquest of Mexico. 
 Encyclopaedia Britannica. 
 
CHAPTER V 
 
 Peru 
 
 The governmental system of Peru, as it existed prior to the 
 Spanish conquest, is unique in some of its most essential fea- 
 tures and worthy of the most careful study. For information 
 with reference to it we have to look to the accounts of its 
 fierce and fanatical conquerors, who probably failed to fully 
 and clearly comprehend the spirit of it. 
 
 The native tribes of South America were generally as defi- 
 cient in organization as those of North America. The Arau- 
 canians, inhabiting the country to the south of Peru, exhibited 
 some capacity for concerted action and were a bold and vigor- 
 ous race, but their institutions bore no resemblance to those 
 of Peru. Why a great and strong government, so peculiar in 
 form, should have developed amidst such surroundings, ap- 
 parently with nothing to suggest the well digested policy pur- 
 sued by the Incas from generation to generation, is an 
 unsolved riddle. The tradition of Manco Capac and Mama 
 Oello Huaco, children of the Sun, appearing near Lake Titi- 
 caca and proceeding to gather the fierce, warlike and cannibal 
 tribes into communities and teach them the arts of peace and 
 the duty and blessings of mutual helpfulness, is as charming 
 as anything to be found in Greek Mythology, yet fails to ac- 
 count for the origin of the Empire, unless we are ready to 
 concede, as did the Peruvian people, the divine origin of their 
 rulers. In the claim of a divine origin for kings there is 
 nothing new or uncommon. 
 
 The power of hereditary despots is universally exercised 
 under claim of a divine commission. Generally this claim 
 has been fortified by an organized priesthood, sedulously 
 teaching the people to view the king with awe and reverence 
 as the representative on earth of the Deity. Inferior officers 
 civil and military have, through various motives, also instilled 
 
 107 
 
io8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 into the minds of the multitude an idea of the sacredness of 
 the prince and the divinity of his commission to rule over 
 men. The government of Peru was a monarchy, hereditary 
 in the male line. The Inca stood at the head of both the 
 civil and religious orders. He married a sister of the full 
 blood for his queen, whose issue succeeded to the throne, and 
 also had numerous other wives. All descendants of the Incas 
 constituted the highest order of nobility, and from them all 
 the great offices of state were filled. From a small territory 
 in the vicinity of Cuzco the dominion of the Incas was grad- 
 ually extended, by peaceful methods wherever possible, but 
 by war when necessary, over adjacent tribes. The conquered 
 people were never exterminated, but became subject to the 
 same regulations as other subjects and received like protection. 
 Their caciques constituted an order of nobility, inferior to 
 that of the blood of the Incas, and exercised some authority 
 over the tribes to which they belonged. They were required 
 to visit the capital and allow their sons to be educated there, 
 so that in the succeeding generations they became imbued 
 with the principles of the government. The members of the 
 family of the Inca are said to have been of a superior type 
 to the mass of subjects. Whether this was due merely to 
 difference in mode of life and opportunities for development 
 or to a diversity of original stock cannot be very satisfactorily 
 answered. Over the religious order stood a high priest or 
 Villac Vmu as he was called, inferior only in dignity to the 
 Inca, by whom he was appointed from his near kindred, to 
 hold the office for life. The Villac Vmu appointed to all the 
 inferior stations of the order. Those officiating about the 
 temple of the Sun at Cuzco were exclusively of the blood of 
 the Incas, as were also the high priests in each district of the 
 empire, but ministers in provincial temples were selected from 
 the families of the native curacas. All members of the Inca 
 nobility were looked up to with veneration as belonging to 
 the holy order. The functions of the priestly order related 
 exclusively to service in the temples and in connection with 
 the very elaborate feasts, festivals and pubHc worship. The 
 Sun was the principal deity worshipped, with a small share 
 
PERU 109 
 
 of devotion for the Moon, his sister wife, the stars, the rain- 
 how, thunder and hghtning. But the Incas, hke the ancient 
 Greeks and Romans, were exceedingly tolerant of other gods, 
 and also had their Pantheon in which were set up the images 
 of the deities of all the conquered tribes of the empire. Fol- 
 lowing the submission of a tribe worshipping a peculiar god 
 or idol, the image was at once promoted and took its place 
 among the gods at Cuzco, where it received appropriate hom- 
 age at the expense of the state. Public sacrifices were made 
 at the great festivals, and it is said at times in addition to 
 animals, grain, flowers and sweet scented gums, children and 
 maidens were also sometimes offered on the altar. It is cer- 
 tain, however, that human sacrifices were rare, and it is even 
 disputed by some that any such were made. The "House of 
 the Virgins of the Sun" at Cuzco was filled with fifteen hun- 
 dred vestal virgins of the blood of the Inca, who kept the 
 sacred fires, started at the annual feast of the Rayini, and 
 wove from the hair of the vicuna the hangings for the temples 
 and the clothing for the household of the Inca. Though 
 called Virgins of the Sun they were really for the Inca, who 
 selected such of them as he pleased for his seraglio. Such as 
 were chosen were kept either at Cuzco or at the different pal- 
 aces throughout the empire. In case he chose to dispense 
 with any of these, they were returned to their former homes, 
 where they were treated with marked distinction as brides of 
 the Inca. If guilty of any loose conduct while in the House 
 of the Virgins, however, they and all connected with them 
 were punished with death. 
 
 The empire of Peru was divided into quarters, to each of 
 which ran one of the four great roads diverging from the 
 capital. Cuzco was likewise divided into four quarters, and 
 the people of each tribe or district residing in the capital lived 
 in the quarter nearest their native place. Each of these four 
 great provinces was placed under a viceroy, who ruled with 
 the aid of one or more councils for the several departments. 
 The viceroys resided some of the time at the capital, where 
 they formed a council of state to the Inca. The people were 
 divided into bodies of ten, and the head of each decade was 
 
no EVOLUTION OF GOVERNMENTS AND LAWS 
 
 responsible for their conduct. Above these were divisions into 
 fifties, hundreds, five hundreds and thousands, with an officer 
 having supervision at the head of each. A further division 
 into departments of ten thousand people was also made, over 
 each of which was placed a governor of the blood of the Inca. 
 
 The judicial system was exceedingly simple, and the law's 
 delays found no place in it. There were regular courts in 
 each town and community, having jurisdiction of petty of- 
 fenses, while those of more serious character were heard by 
 superior judges or governors of districts. The judges were 
 all appointed by the Inca and removed at pleasure. They 
 were obliged to determine every suit in five days from the 
 time it was brought,, and there was no appeal. A board of 
 visitors traveled over the kingdom, inquired into the conduct 
 of the magistrates and punished any misconduct. Inferior 
 courts were required to make monthly returns of their pro- 
 ceedings to the superior ones, who in like manner reported to 
 the viceroys. 
 
 Theft, adultery and murder were capital offenses, unless 
 mitigating circumstances were found. Blasphemy against the 
 Sun and malediction of the Inca were punished with death, 
 as also was the burning of a bridge. There were few laws 
 relating to property rights as between private citizens, for 
 the reason that the general policy of the empire left no room 
 for much in the line of private interests. To destroy land- 
 marks, burn a neighbor's house or cut off his water supply 
 was a serious offense. In its division of the land and super- 
 intendence of all the business of the people is exhibited the 
 most marked peculiarity of the Peruvian polity. The whole 
 territory of the empire was divided into three parts, one for 
 the Sun, one for the Inca and the other for the people. The 
 proportions varied according to circumstances. The lands 
 of the Sun supported the religious' establishments, fed the 
 priesthood and supplied all things needed for their elaborate 
 ceremonials. From that of the Inca the royal household and 
 all the needs of the civil and military establishments were 
 supplied. The remainder was divided in equal shares per 
 capita among the people. The division of the soil was re- 
 
PERU III 
 
 newed every year, and the share assigned to each household 
 was increased or diminished according to the number in the 
 family. The only distinction allowed was in favor of the 
 lower order of nobility, who were given a larger allowance. 
 The people first attended to the cultivation of the land of the 
 Sun. Next they tilled the lands of the old, the sick, the 
 widow and orphan and the soldiers away in actual service. 
 They were then allowed to attend to their own, each by him- 
 self, with a general obligation to be mutually helpful in case 
 of need. Lastly they cultivated the lands of the Inca, all 
 working together in gala costume and making it a time of 
 jubilee and festivity. The crops belonging to the Sun and the 
 Inca were gathered and placed in granaries provided for the 
 purpose. 
 
 The flocks of llamas were exclusively the property of the 
 Sun and Inca and were cared for by shepherds assigned to 
 that task. Great numbers of them were slaughtered for 
 religious festivals. At the proper time they were sheared and 
 their fleeces deposited in the public magazines, from which 
 the wool was distributed among the people according to their 
 needs, and spun and woven by the women, who were educated 
 to that end. Cotton however was raised on the lowlands and 
 used for clothing by the people in the hot districts. The 
 people were also required to weave for the Inca, and officers 
 appointed for the purpose, distributed the material and di- 
 rected the work. Not only did they see to the proper use of 
 the material furnished for the use of the Inca, but also to 
 that for the people as well, and care was taken that nothing 
 should be wasted or misapplied. The great majority of the 
 people were husbandmen, who supplied their wants from the 
 lands assigned to them. There was need however of hands 
 to work the mines, which all belonged to the Inca, and to 
 manufacture the utensils and ornaments of his palace and the 
 temples. For these a sufficient number were selected and 
 specially instructed in the arts. For the construction of pal- 
 aces, temples, roads and other public works, laborers were 
 drawn from the various provinces for stated periods of service 
 and maintained at the public expense while so employed. The 
 
112 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 distribution of burdens was fair and equal, so that no person 
 was crushed by the pubHc exaction. 
 
 An accurate census of the inhabitants was made and re- 
 turned every year, and registers were kept of all births and 
 deaths. At intervals a general survey of the whole country 
 was made, showing the amount and quality of the land, and 
 the purposes to which it was adapted. This afforded the basis 
 for the division of the land, the apportionment of public work, 
 the levy of soldiers and the distribution of supplies. Distri- 
 butions among the provinces and districts were determined by 
 superior officers and particulars were attended to by the local 
 authorities. Thus ancient Peru affords probably the only 
 instance on a large scale of a government mainly devoted to 
 the regulation of the business affairs of the people with a 
 view to promoting the general comfort and prosperity of all. 
 The fundamental ideas of their system were, that all should 
 work industriously yet not beyond the limits of endurance, 
 that each should be provided with the necessaries of life, 
 should marry, rear children, live virtuously and honestly. The 
 vast and magnificent public works and the great stores of 
 grain and manufactured stuff found by the conquerors bear 
 testimony to succeessful employment of the people in indus- 
 trial pursuits and to excellent economy in the use of the 
 products of their labors. The Spaniards reported finding 
 grain enough to last several years in their granaries and vast 
 quantities of woolen and cotton stuff, as well as implements 
 and utensils of various kinds, in their warehouses. The 
 stores of grain from the lands of the Sun and Inca were not 
 wasted, but in time of need were drawn on to supply the wants 
 of the people. 
 
 The government was a great business establishment calling 
 for a vast amount of patient attention to details. The no- 
 bility, while enjoying superior advantages, were not mere 
 drones nor intriguing politicians. Each had his duties to per- 
 form for the public. The government not only directed all 
 warlike undertakings and all works regarded by Europeans as 
 public, but also filled, to some extent, the place of the mer- 
 chants and operators of mines and factories. In considering 
 
PERU 113 
 
 what was accomplished by this system it must be borne in 
 mind that all was done without the aid of steam, electricity or 
 labor-saving machinery of any kind, that the use of iron 
 was unknown, and that they were wholly unacquainted with 
 letters or even with the rudiments of picture writing; yet they 
 kept more accurate records of the people and resources of the 
 empire than were kept by any contemporaneous European na- 
 tion. This was done by means of the quipu, one of their 
 peculiar devices. It was a cord about two feet long composed 
 of different colored threads, tightly twisted, from which 
 smaller threads were suspended like a fringe. The colors de- 
 noted different objects or ideas as yellow, gold; white, silver; 
 red, war; white, peace. Knots tied in the threads indicated 
 numbers, and by different combinations of threads and knots 
 numbers to any limit could be expressed. All calculations 
 were made by use of the quipu and with great accuracy. Dif- 
 ferent officers made reports to the government on different 
 subjects. One had charge of the revenues and reported the 
 stores of various kinds placed in the public granaries and 
 warehouses, and the raw material distributed among the la- 
 borers. Another made report of births, deaths, marriages, 
 number of men capable to bear arms and other de- 
 tails relating to population. All returns were forwarded an- 
 nually to Cuzco, where they were inspected and used by the 
 proper officers. These knotted skeins of many colored thread 
 afforded complete statistics of the material resources and busi- 
 ness affairs of the entire kingdom. The system has advantages 
 over reports in written or printed words. There is no chance 
 to talk for the purpose of concealing information. The 
 threads and knots had definite and certain meanings, and told 
 their story once and for all. 
 
 Along the great highways, which equalled Rome's great 
 roads in construction, were placed at intervals of ten or twelve 
 miles tamhos for the accommodation of the Inca and those 
 who traveled on public business. Some of these were very 
 large and designed to lodge the army when marching through 
 the country. A complete system of posts was established along 
 all great routes. Small buildings were erected at intervals 
 
114 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 cf less than five miles, in which were stationed a number of 
 trained runners, called chasquis, whose duty it was to carry 
 dispatches and articles for the use of the Inca and his court. 
 By this means urgent messages were carried at the rate of 
 one hundred and fifty miles a day, and the Inca was kept con- 
 stantly informed of what was taking place in the most re- 
 mote parts of the empire. The military system and policy 
 were on an equally orderly and advanced plane. Regular 
 drill took place in every village twice or thrice a month. In 
 case of war levies were drawn from each province and divided 
 into companies and battalions under proper officers, and the 
 whole army was led by the Inca or one of his blood. The 
 troops moved rapidly along the great roads and found ample 
 provision for their support at every camping place. Like 
 Rome in her palmy days, Peru steadily extended her dominion 
 by peaceful negotiation, persuasion and inducements to the 
 chiefs and leaders of neighboring people wherever possible, 
 but by arms when other means failed. Thus the empire spread 
 from its original small district about Cuzco northward beyond 
 Quito to about two degrees north latitude and south to about 
 thirty-seven degrees south latitude, and from the Pacific on 
 the West to an unknown boundary on the eastern slope of 
 the Andes. Each conquered district was carefully surveyed 
 and the lands apportioned on the same principles as were ap- 
 plied in other parts of the empire. The people, especially the 
 chiefs, were taught to speak the Quinchua tongue, the lan- 
 guage of the court, and for this purpose teachers were sent 
 into the newly acquired province. In case of serious disaf- 
 fection or continued turbulence on the part of the inhabitants 
 of any district the people, or a considerable portion of them, 
 were transplanted into some distant province, where they were 
 surrounded by subjects of tried fidelity, and their places filled 
 by the displaced population. 
 
 While polygamy was allowed to the Inca, who took to him- 
 self wives and concubines in great multitude, and also to the 
 great nobles, and while the Inca took one of his own sisters 
 for his queen, the common man was restricted to one wife, 
 to be selected from the community in which he lived, but was 
 
PERU 115 
 
 forbidden to take his sister. Marriage was compulsory. On 
 a stated day in each year all those of marriageable ages, males 
 of not less than twenty-four and females of eighteen to 
 twenty, were called together in the great squares of the towns 
 and villages. The Inca was master of ceremonies in the as- 
 sembly of his own kindred and married the different pairs by 
 taking their hands and placing one within the other and de- 
 claring them man and wife. The same ceremony was per- 
 formed for the common people by the local magistrates. The 
 consent of the parents was required. A dwelling was pre- 
 pared for each couple by the district, and their share of the 
 land was set off to them. The simple marriage ceremony was 
 followed by general festivities among the friends of the 
 parties, which lasted several days, and as all the weddings 
 for the year took place on the same day, nearly the whole 
 population of the empire joined in the jubilee. It is asserted 
 that there was not a prostitute in the whole empire. What 
 rules obtained with reference to the remarriage of widows and 
 widowers the writer has not been able to ascertain. The 
 general policy seems to have been to promote industry and 
 virtue by providing all with homes and family ties. 
 
 The educational system was based on the theory that each 
 should be taught that and that only which pertained to his 
 particular calling. A favorite maxim of Tupac Inca Yupan- 
 quin is said to have been that : "Science was not intended for 
 the people; but for those of generous blood. Persons of low 
 degree are only puffed up by it, and rendered vain and arro- 
 gant. Neither should such meddle with the affairs of gov- 
 ernment, for this would bring high offices into disrepute and 
 cause detriment to the state." 
 
 The members of the numerous families allied by blood to 
 the Incas were educated by their amantas or wise men at semi- 
 naries provided for the purpose. They were instructed with 
 especial reference to the stations they were to occupy. They 
 were carefully taught the principles of government and the 
 laws they were to administer. Those who were to assume 
 priestly functions were specially instructed in religious rites. 
 All were taught to speak the court language in its puritv and 
 
ii6 EVOLUTIOfN OF GOVERNMENTS AND LAWS 
 
 learned the science of the quipus, which at the same time 
 covered the field of mathematics and supplied the place of 
 written records. Historical traditions were transmitted orally, 
 supplemented by the data recorded by means of the quipus. 
 By this method a considerable degree of accuracy could be 
 preserved in a tale passed down through many generations. 
 The use of the quipu would seem capable of indefinite exten- 
 sion and elaboration, for threads of different colors and 
 lengths knotted and combined in various ways would possess 
 as great capacity for expressing ideas as arbitrary characters 
 marked on paper. The use of them appears less convenient, 
 but it is evident that the possibilities of communication by 
 means of them are unlimited. The number of primary threads 
 for characters could be multiplied indefinitely and moulded 
 to use in the same manner as letters are now used. It seems, 
 however, that the Peruvians had not developed the system to 
 this extent, but used the threads as symbols of things and to 
 a limited extent of abstract ideas. 
 
 The education of the lower orders was not wholly neglected. 
 Those engaged in agriculture were instructed in, the cultiva- 
 tion of such products as were adapted to the lands to which 
 they were assigned. The varieties of climate due to differ- 
 ence in altitude, ranging from tropical heat along the sea 
 coast to perpetual snow on the mountain tops, afforded a 
 great diversity of products in neighboring districts. Ban- 
 anas, manioc and other tropical products on the hot lands, 
 Indian corn, maguey, ciica, etc., a little higher up, potatoes 
 and quinoa, a grain resembling rice, in the cool mountain 
 regions, and still higher pasture lands for the llamas, wild 
 sheep and other wild animals. All the animals, wild as well 
 as domesticated, belonged to the Inca. At the annual great 
 hunts there was a general muster of the people of the district 
 to round up all within the hunted territory. Beasts of prey 
 were killed, but discrimination was used, and only the male 
 deer and the inferior sort of sheep were killed for food. 
 The rest of the sheep were sheared and turned loose again. 
 Of all the people on the American continent the Peruvians 
 alone kept domestic animals, and they only llamas, alapacas 
 
PERU 11/ 
 
 and other animals of the sheep kind. The llamas were used 
 as pack carriers. In tilling the soil the natives had no assist- 
 ance from draft animals. All was done with human strength. 
 The value of manures was well understood, and extensive use 
 was made of the guano deposits on the islands near the coast. 
 Vast labor was expended in terracing the steep mountain sides 
 and for the purposes of irrigation, aqueducts, which would do 
 credit to any country, were constructed of closely fitted and 
 cemented stone. One traversing the district of Condesuyu 
 extended over four hundred miles. In the execution of these 
 works the usual engineering difficulties were met and success- 
 fully overcome, rivers were bridged, mountains tunneled and 
 the waters of the lakes and reservoirs in the highlands stored 
 and distributed along the slopes where moisture was most 
 needed. In spots where there was lack of rainfall and no 
 means of irrigation, pits were dug to a considerable depth to 
 take advantage of the moisture from below, and by rich 
 manuring crops were raised in these cellar like gardens. 
 While the implements of agriculture were of the most primi- 
 tive kind, and no aid was obtained from draft animals or 
 machinery, the results were satisfactory and Peru was pre- 
 eminently a land of plenty. These results flowed from the 
 governmental policy and as a result of the education and di- 
 rection imparted by the orders of the Inca. The compara- 
 tively small numbers engaged in mechanical arts were also 
 instructed in their callings and, while the use of iron was 
 unknown, skillful use was made of gold, silver, copper, and 
 tin. Tools nearly equalling steel in hardness were made of 
 copper alloyed with tin. The art of weaving was well ad- 
 vanced, though by primitive methods. In cutting and moving 
 granite and other hard stones they were well skilled. By 
 what process the immense blocks, containing hundreds and 
 even thousands of cubic feet each, were taken from their 
 beds in the quarries, moved long distances and placed in the 
 temples and palaces is unexplained. 
 
 Their architecture is said to be wanting in grandure and 
 finish. They constructed no high buildings. Those even of 
 greatest pretensions rarely had a second story. The walls 
 
ii8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 were massive but without openings other than doors, and the 
 roofs were often thatched. This may not be due altogether 
 to a want of boldness of conception, for the frequency of 
 earthquakes rendered this style best adapted to safety and 
 permanence. In bridging streams and chasms they exhibited 
 both ingenuity and skill. Suspension bridges two hundred 
 feet or more in length were found by the Spaniards and con- 
 tinued in serviceable condition for many years. They were 
 supported by ropes stretched between stone buttresses. Though 
 the products of Peru were sufficiently diverse to afford a basis 
 for much internal commerce, and though gold and silver in 
 great abundance were produced and used in ornamenting the 
 temples and making vessels and implements for use and orna- 
 ment for the Inca, no such thing as money or any substitute 
 for it was known. Fairs held three times a month in suitable 
 places afforded at the same time a holiday and opportunity 
 for exchanging products by direct barter. 
 
 Ancient Peru presents an instance of a thoroughly organ- 
 ized state, standing alone on a continent filled with scattered 
 tribes of savages, but built from material similar to the chaotic 
 mass filling the balance .of the land. Its policy was clearly 
 defined and steadily and successfully carried out. It brought 
 order out of chaos. It waged war on its borders, that the 
 area of internal peace might be enlarged. It exacted industry 
 and gave security and plenty in return. It enforced morality 
 and exacted strict obedience to authority and observance of 
 the forms of a religion exceptionally free from gross super- 
 stitions and elevated in tone for a people so environed. No 
 other known government ever succeeded so entirely in or- 
 dering the private affairs and daily life of its people, and no 
 other dynasty labored so persistently to guard the people from 
 want. Without any aid by suggestion from other growing 
 civilizations, it evolved a system based on fundamental ideas 
 so clear, strong and well enforced as to challenge the wonder 
 and admiration of all. 
 
 It has been a source of wonder to some that the wants 
 of the masses could be so well supplied when the burden rested 
 on the toilers, not only of cultivating their own lands and 
 
PERU 119 
 
 supplying their own needs, but also of tilling the lands of the 
 Inca and the Sun as well, besides building and maintaining all 
 public works and performing military service. We have no 
 exact data showing the numbers of th» nobility, priesthood 
 and inferior officials or of the common people. Probably the 
 ratio of privileged classes to the whole population was some- 
 what higher than in most of the more advanced nations of 
 modern times. But the ratio of the whole number of offi- 
 cials, priests and soldiers to the total population was much 
 less than in the military states of Europe. Another element 
 of great importance, which seems to be overlooked, is the 
 entire absence in Peru of those classes who live in luxury 
 from rents of land, interest on money and other forms of 
 income from property. In all modern states these constitute 
 the most favored portion of the people, and the cost of their 
 maintenance is greatest. As they render no service in return 
 for their incomes, whatever they consume is a net loss to 
 the producers. Still another and more numerous, though per- 
 haps less costly class, found in all the most advanced modern 
 nations, is the idle poor, who are either unable or unwilling 
 to find employment. The Inca found useful employment for 
 all. The judges administered the law and paid advocates 
 were unknown. 
 
 The system of government was so thorough that there was 
 no room for a compHcated code of laws. Each was required 
 to do his appointed share of labor and given his due return. 
 His assurance against want in times of misfortune lay in the 
 public storehouses and the law which required his neighbors 
 to till his field, when he was unable to do so. There were 
 no deeds, mortgages, leases or other contracts relating to 
 land, for each had the use but not the ownership of the soil. 
 There were no notes or other obligations for money, for there 
 was no money. There were no slaves nor contracts of hire. 
 All served the Inca and helped each other. There were no 
 taxes to be raised from a sale of crops. The produce of the 
 Inca's lands, mines and flocks supported the government and 
 the lands of the Sun, the priesthood. Neither the tax gath- 
 erer, the usurer nor the landlord ever came to seize and sell 
 
120 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the newly ripened harvest. The government was never a 
 debtor, nor yet wanted means to arm and equip soldiers, build 
 palaces, temples, roads, bridges and other public works. 
 
 Authorities 
 W. H. Prescott: History of the Conquest of Peru. 
 C. Enoch : Peru. 
 Encyclopaedia Britannica. 
 
CHAPTER VI 
 
 Egypt 
 
 To the records made by themselves only we must look for 
 accounts of the earliest civilization of the Egyptians. Of ne- 
 cessity therefore the first to be known is concerning a people 
 already sufficiently advanced to have developed a written lan- 
 guage, except as it may be carried back by traditions passed 
 down from earlier times and subsequently recorded. Though 
 the surroundings of the valley of the Nile suggest conditions 
 under which a race of people might have developed in peace, 
 secure against attacks from external enemies, history fails 
 to reach such a time. Whether the ancient Egyptians, whose 
 descendants still occupy the country, originated in Egypt or 
 elsewhere cannot be answered from any reliable evidence. 
 Like most people, they begin their account of their nation 
 with a mythical line of supernatural rulers, and a time when 
 the gods resided on earth and gave mortals the benefit of 
 their instruction. If the truth be that the human race is the 
 product of evolution from the lower to the higher, the ad- 
 vancement has not been steady and continuous with any people 
 of whom we have a long history. Times of marked intel- 
 lectual activity as well as of moral advancement have been 
 followed by periods of torpor and degradation. It may there- 
 fore well happen, that at one period the people may look back 
 to a prior time as a golden age, when men were wiser and 
 better, and when the gods came nearer to them. Thus every-r 
 where we find people looking to their ancestors for wisdom. 
 The accumulation of knowledge at any period is the product 
 of the past, for which prior generations must be given credit, 
 and there is a tenclency to credit it all to some favorite age. 
 Whether the Egyptians were pioneers, in advance of all other 
 people in civilization, cannot be stated with certainty, but that 
 they have left unmistakable proofs of the antiquity of their 
 
122 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 advancement, which antedate those of any other people may 
 be safely asserted. Owing to the peculiar climate of the coun- 
 try and the desire to leave enduring monuments, the investi- 
 gator of today may study at first hands the work of Egyptians 
 who lived many thousands of years ago. He may read on 
 granite monuments, or even on frail papyrus, the inscriptions 
 of Egyptian artists and scribes in the original hieroglyphics 
 as made by themselves long prior to the time of Moses or 
 Joseph. The profound interest with which students of all the 
 sciences to which they are related have in recent years stud- 
 ied these ancient records, and the diligence and success with 
 which their efforts to decipher and interpret them have been 
 rewarded, have added greatly to our knowledge of the past 
 and of the arts, which before were traced only to people 
 nearer to us in time and in blood. 
 
 The starting point, from which Egyptian history is written 
 in modern times, is the reign of Menes, who united the upper 
 and lower countries and established his capital at Memphis. 
 The date of his reign is not definitely known, but it could not 
 have been much later than 4000 B.C. and may have been 
 much earlier. From his time a list of successive dynasties is 
 given by ancient writers, and Herodotus tells us, that the 
 priests read to him from a papyrus the names of 330 mon- 
 archs, who ruled as his successors to the reign of Moeris. 
 After him came a great monarch, whose name he calls Sesos- 
 tris. He also says that they told him that in the time of 
 Men (Menes), all Egypt except the Thebaic canton was a 
 marsh, none of the land below lake Moeris then showing itself 
 above the surface of the water. There are no records from 
 which a connected account of the successive rulers can be 
 constructed, and it is quite impossible to fix dates in the early 
 reigns with any fair degree of accuracy. How many people 
 were ruled over by Menes and what system of government had 
 prevailed before his time, we do not know, nor can the state 
 of the arts at that time be declared, nor the condition of the 
 valley of the Nile be described further than that it was ex- 
 ceedingly fertile, then as now, and subject to yearly overflow 
 from the river. Whether it then contained forests and waste 
 
EGYPT 123 
 
 lands or was already cleared and cultivated is unknown. How 
 long the people had then been dwellers in the valley of the 
 Nile, whence they came and how they had lived in prior times, 
 are questions that cannot be answered. 
 
 The contemporaneous inscriptions do not begin till about 
 the time of what is termed the Fourth Dynasty, if the scholars 
 are correct in their inferences. The three great pyramids of 
 Gizeh, built as enduring tombs of successive Pharaohs, are 
 assigned to this time. These great works evidence a numer- 
 ous population, without whose labor they could not have 
 been constructed, a strong government, able to command the 
 services of the necessary workers, and also indicate peaceful 
 relations with all other people, for war of any great magni- 
 tude would almost certainly have absorbed the attention and 
 energies of the nation to too great a degree to allow such 
 vast works to be carried forward at the same time. These 
 monuments tell us with certainty that great numbers of people 
 worked in concert for their completion, and that the govern- 
 ment must have been firmly established and the people ac- 
 customed to the exercise of authority. The implements used 
 in their construction prove that the art of metal working was 
 well advanced. The power employed in transporting the ma- 
 terial and placing it in position, as shown by the pictures and 
 inscriptions, was mainly the combined strength of great num- 
 bers; but Herodotus tells us that machines were used for 
 raising the great stones to their positions, and this seems prob- 
 able, though we have no description of them. The pictures, 
 which have been preserved, exhibit the evolution of dress 
 from a simple short skirt, not much more to the purpose than 
 a breech clout, to a costume consisting of a shirt, skirt, long 
 over dress, sandals, wig, etc. It is not necessary to mention 
 mere ornaments, for the lowest races all indulge in ornaments 
 according to taste and ability, though clothing be considered a 
 superfluous luxury or not thought of at all. At the time of 
 the building of the great pyramids the evolution in dress was 
 not much past the primary stage and short skirts were in 
 fashion. In agriculture, though the implements used were 
 crude, the variety of crops raised was quite extensive, and 
 
124 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the people were well supplied with cattle, sheep, goats and 
 donkeys, as well as with fowls, especially geese and ducks. 
 
 In the earliest times of which we have any record, a division 
 of the country into the upper or south and lower or north was 
 recognized. The political organization of the upper country 
 seems to have been in advance of that of the lower, and the 
 internal development of it probably preceded that of the more 
 marshy delta. While the government of Egypt was at all 
 times monarchical in form, the actual administration was 
 ordinarily in accordance with established rules, which were 
 recognized as limitations on the power of the officials. The 
 people, however, were without substantial guarantee against 
 the oppression of despotic Pharaohs, and the construction of 
 the great pyramids was a heavy burden, mercilessly imposed 
 on his subjects by the king. 
 
 According to the earliest accounts, under what is termed the 
 old empire, upper Egypt was divided into provinces, the local 
 government of each of which was hereditary in a noble family. 
 The same family also ordinarily held the office of high priest. 
 In those times the nobility seem to have held a large share of 
 political power, and the central authority to have been less 
 potent than in later times. The division of lower Egypt into 
 provinces or nomes appears to have followed later. 
 
 The character of the government was unmilitary. The 
 worship of the gods, maintaining the temples and honoring 
 the dead, occupied a large share of the attention of the gov- 
 ernment, and required the services of a numerous priesthood, 
 always closely allied to the civil authorities, and who usually 
 combined priestly functions with administrative ones. There 
 were thirty "great men of the south" having unequal districts 
 and powers. A governor of a district was also a judge and 
 ruler of the chief town. It was the fashion to combine a 
 long list of official titles, many of which were often without 
 real significance. As judges they were priests of Ma'at the 
 goddess of truth. Over these thirty chief men of the South 
 was a governor of the south. The lower country was after- 
 ward divided into similar nomes and placed under a governor 
 of the north country, but at what date these were established 
 
EGYPT 125 
 
 does not appear, though the title of "governor of the north 
 country" appears in inscriptions of the time of the Middle 
 empire. In each of the small districts into which the country 
 was divided, there was a court of justice, a storehouse for 
 corn and a local militia. The central power was mainely con- 
 cerned with the revenue and filling the treasure houses. 
 There was a central finance department, which employed 
 numerous superintendents and scribes to attend to the col- 
 lection and care of the public revenues, most of which were 
 received in kind from the fields, mines and workshops. There 
 was a superintendent of agriculture, who had general charge 
 of matters connected with overflow and irrigation, and also 
 a superintendent of the forests in the border country up the 
 Nile. 
 
 The chief judge was the highest ofBcial under the king. 
 He was the "leader of the great men of the south and of the 
 north" and "second after the king in the court of the palace," 
 to these were often added a long list of priestly and other 
 titles, some of which indicated real power and substantial 
 duties. Under him were numerous judges of different de- 
 grees. Six great courts are spoken of, made up of local 
 judges. Great respect was entertained for law and the 
 judicial offices. 
 
 In each province or nome there were officials of high and 
 low degree charged with various public functions. As under 
 most modern governments, there was a constant struggle to 
 gain official preferment, and the main end of all public ser- 
 vants was the gathering of revenues for themselves and those 
 under whom they served. The beneficial service rendered for 
 the multitude was in public works, the administration of jus- 
 tice and protection against external enemies. Of the public 
 works those connected with agriculture and the distribution 
 of water by canals, reservoirs, etc. were highly useful, while 
 the construction of temples and tombs, for which no other 
 people seem to have had so much regard, gratified the pride 
 and accorded with the sentiments of the people. 
 
 The monuments and records were made to preserve the 
 memory of the rich and powerful. The inscriptions show the 
 
126 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 state and surroundings of the nobility, their storehouses and 
 servants. As the monuments, on which these inscriptions 
 appear, were constructed under the orders of those whose 
 memory they perpetuate or their friends, the purpose they 
 subserve is primarily to attest their importance. What is 
 shown of the condition of the lower orders of society, is 
 merely as incident to the state of the chief. The old empire 
 exhibits a nobility and priesthood with power over the peas- 
 ants and serfs firmly established, much wealth and luxury for 
 the higher orders, and settled habits of industry enforced on 
 the poor. The middle empire shows an extension of the 
 official system, but no marked change in the organization of 
 society or in the theory of the government. How numerous 
 a class of independent tradesmen or small land owners ex- 
 isted at any period cannot be definitely determined, though 
 there appear to have been some such. 
 
 The Twelfth Dynasty, covering the period of about the 
 twentieth and twenty-first centuries B.C., is spoken of as a 
 time of good government, prosperity and advancement in 
 learning. It was the classical age of letters, in which the 
 standard of good writing was established. Afterward fol- 
 lowed a period of weakness and decline, at the end of which 
 the country was invaded by the Hyksos or shepherd kings 
 from the northeast. The particulars of their invasion and 
 rulership are not preserved, but it is clear that the ancient 
 Egyptian people were not displaced, nor were the laws and 
 customs of the invaders imposed on the conquered nation. 
 They levied tribute and compelled submission to their power 
 for a time. 
 
 The new empire began with Ahmose who drove out the 
 Hyksos and followed them into the south of Palestine. Un- 
 der his reign began the military age, in which Egyptian arms 
 were carried into remote regions. Palestine and Asia Minor 
 to the Euphrates were overrun by the monarchs of the Eigh- 
 teenth and Nineteenth dynasties and the country to the south 
 was subdued: Tribute was exacted from the conquered na- 
 tions, but Egyptian civilization failed to take root and grow on 
 any foreign soil. Contact with distant people had its effect on 
 
EGYPT 127 
 
 the Egyptians, and the isolation in which they had apparently 
 lived during all of the early dynasties was at an end. With 
 varying success they fought the Asiatics on the north and 
 the Ethiopians on the south. Thothmes III crossed the Eu- 
 phrates and received tribute from many nations. Contact 
 with distant people gave new ideas as well as tribute to the 
 Egyptians. Amenhotep IV attempted to reform the religion 
 and set up the worship of the Sun god as the only living god. 
 He sought not merely to introduce the worship of this deity 
 but also to destroy all the old gods. The change however 
 failed to endure, and under his successors the old worship 
 was restored. 
 
 Under Ramses II Egypt seems to have reached the zenith 
 of its power, and of activity in the construction of temples 
 and other great public works. With the departure of the 
 Hyksos and the establishment of the new empire some changes 
 in the organization of the government took place. The an- 
 cient nomarchs and local landed aristocracy gave way to royal 
 officials, and landed property became concentrated in the pos- 
 session of the king and the priesthood. This change is by 
 some attributed to military rewards, incident to the wars 
 against the Hyksos, but in Genesis it is recorded, that through 
 the policy of Joseph in storing up a vast supply of grain dur- 
 ing the seven years of plenty and then selling it to the people 
 during the succeeding seven years of famine, Pharoah came 
 to own all the land except that belonging to the temples. With 
 the ownership of all the landed property, from which the 
 king exacted one-fifth for rent, his power became despotic, 
 and there were no strong subjects to check it. The middle 
 order disappeared, leaving the king and his officials at the 
 top and a multitude of slaves at the base of the social struc- 
 ture. Military chiefs and foreign mercenary troops became 
 conspicuous. It was possible for foreigners to hold high po- 
 sitions ; thus Joseph was sold by his brethern to Potiphar, who 
 placed him at the head of the household, and afterward 
 Pharaoh raised him to the highest office lender the crown. 
 The family of Jacob came into Egypt in great favor, due to 
 the influence of Joseph, but afterward were reduced to hard 
 service under severe taskmasters. 
 
128 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 A marked characteristic of the system of government was 
 minuteness of details in official orders and reports. The 
 scribe was always at hand to note down every item of reve- 
 nue received, every expenditure from the treasury, as well as 
 every public act of the officials. A large proportion of the 
 population consisted of serfs and bondmen, organized by 
 companies under overseers, who drove them to their tasks as 
 mercilessly as is usual with slaveholders. The workmen were 
 divided into companies of artisans and laborers in each dif- 
 ferent kind of employment, and were treated with rigor and 
 contempt by their superiors. Above them were officials of 
 all degrees from the chief of the company to the governor. 
 The laborers employed in the tombs and on the public works 
 received their rations from the public granaries and store- 
 houses. Records kept by chief workmen are still extant, 
 showing the names of the workmen, the days on which they 
 worked and failed to work and the reasons for failure. Some- 
 times strikes were caused by delaying or withholding their 
 rations. Herodotus says the people were divided into seven 
 distinct classes. Priests, warriors, cowherds, swineherds, 
 tradesmen, interpreters and boatmen. That interpreters 
 should be mentioned as a class shows that in his time the 
 intercourse with foreigners was very extensive, else there 
 could have been no need of many of them. 
 
 The family ordinarily consisted of husband, wife and chil- 
 dren. Polygamy was rare, though the rich made concubines 
 of maid servants. Ramses II took three royal consorts. The 
 marriage of sisters was practiced, and seems to have been of 
 increased frequency after the Greek conquest, at least among 
 the kings. Among the lower classes morals were very low, 
 and marriages often informal and broken at pleasure. There 
 was no seclusion of women as under Mohammedan rule. 
 Except among the baser sort, the natural bonds of affection 
 between parents and children appear to have been as strong 
 as elsewhere, and a marked peculiarity of the people was their 
 inordinate reverence for and care of the dead. This did not 
 end with embalming the body and building a costly tomb, but 
 the dead required a distinct department of the government. 
 
EGYPT 129 
 
 Mothers nursed their children for three years, and in their 
 early years kept them nude, but they had dolls and toys to 
 play with. The school boy in ancient times was dressed with 
 a girdle. Children of the upper classes were often sent away 
 from home to school, even at a tender age. The school course 
 included ethics, practical philosophy and manners. The road 
 to political station was through the school, and the statesman 
 must first become a scribe. A generous use of the rod was 
 deemed essential to the proper development of the student. 
 All classes appear to have shared to some extent in learning. 
 Considering the great attention paid to letters by the Egyp- 
 tians, it seems strange that connected histories have not been 
 preserved to us. Fragments of official documents and cor- 
 respondence and the inscriptions engraved on enduring monu- 
 ments furnish the disjointed writings, from which the modern 
 scholar must form his description of Egyptian civilization. 
 They made much progress in astronomy, divided the year 
 into 365 days and determined the direction of the poles with 
 accuracy. In medicine the leading idea seems to have cor- 
 responded with that not long since abandoned, that the more 
 filthy and repulsive the substance, the more potent as a medi- 
 cine. Many and most gross superstitions, too numerous for 
 even a general description, were indulged in by all classes of 
 the people. Something like a picture of the times is ex- 
 hibited by the record of a celebrated case which came up in 
 the time of Ramses IX (about 11 00 B.C.). Under the gov- 
 ernor in Thebes, there was a ''prince of the town" over the 
 eastern part, and a ''prince of the west" or "chief of the 
 police of the necropolis" over the western part, the city of 
 the dead. Complaint was entered by the prince of the town 
 that tombs in the necropolis had been robbed. The court 
 having jurisdiction of the case consisted of "Cha emuese the 
 superintendent of the town and governor" assisted by Nesan- 
 ni, scribe of Pharoah and Neferckere-em-per-Amun the 
 speaker of Pharaoh. A commission was appointed by the 
 court to examine the tombs and report. This was done, and 
 the report describes circumstantially what pyramids and 
 mummy pits were examined. Out of ten, nine were found 
 
130 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 uninjured. As to the other the commissioners reported ''The 
 pyramid of the King Sebekemsaf. It was found that the 
 thieves had bored a mine and penetrated into the mummy 
 chamber. They had made their way out of the outer hall 
 of the tomb of Nebamun the superintendent of food under 
 Thothmes III. It was found that the king's burial place had 
 been robbed of the monarch ; in the place also where the royal 
 consort Nubch'as was buried the thieves had laid hands on 
 her." "The governor and the prince vassals ordered a thor- 
 ough examination to be made, and it was proved exactly by 
 what means the thieves had laid hands on this king and on 
 his royal consort." 
 
 The examination of the private tombs disclosed that those 
 of two "singers of the high-priestess of Amon Re, King of 
 the gods" had been broken into and other private tombs. "It 
 was found that they had all been broken into by the thieves, 
 they had torn the lords (i.e. the bodies), out of their coffins 
 and out of their bandages, they had thrown them on the 
 ground, they had stolen the household stuff which had been 
 buried with them, together with the gold, silver and jewels 
 found in their bandages." The commission so reported, and 
 the prince of the necropolis sent in the names of the sup- 
 posed thieves, who were immediately arrested. They were 
 "examined," that is "beaten with stick on their hands and 
 feet," until they confessed that they had entered the tomb 
 of the king and taken rich ornaments of gold from the mum- 
 mies of the king and queen and divided the booty among the 
 eight robbers. To supplement and make good their confes- 
 sion they were required to identify the pyramid they had 
 robbed. The governor and royal scribe commanded them to 
 be taken in their presence to the necropolis, where they identi- 
 fied the tomb of Sebekemsaf as that to which their confession 
 referred. The court thereupon made report to the Pharaoh, 
 who alone could pronounce sentence in the case. Meanwhile 
 the thieves were placed in custody of the high priest of Amon 
 and confined in the prison of the temple! On suspicion of 
 other desecrations a metal worker of bad repute was ar- 
 rested and "examined." He confessed that he had been in 
 
EGYPT 131 
 
 the tomb of Ese, wife of Ramses II but, when taken to show 
 the scene of his crime, he pointed out the graves of the chil- 
 dren of Ramses II, in which no one had been buried. There- 
 after, "the princess examined the tombs and the large cham- 
 bers in the place of the beauties, in which the beautiful royal 
 children, the royal consorts, the royal mothers and fathers of 
 the mothers of the Pharaoh rest. They were found unin- 
 jured." Thereupon there was great rejoicing and a "great 
 embassy to the town consisting of the inspectors, the chiefs 
 of the workmen of the necropolis, the officers of the police, the 
 police and all the bondservants of the necropolis of western 
 Thebes." 
 
 Three years later, other robberies having occurred, about 
 sixty arrests were made, including many officials of low rank, 
 a scribe of the treasury of Amon, a priest of Amon and one 
 of Chons. They had robbed the outer chambers of the tombs 
 of Ramses II and Sety I and sold the stolen property. A 
 quarrel over the division of the spoils led to the discovery. 
 This capture did not end the thefts, and it was finally deter- 
 mined to abandon the tombs in the desert in order to save the 
 mummies. These were moved from place to place, and finally 
 concealed in a deep rocky pit in the mountains of Der-el-bahri, 
 where they reposed until modern robbers found the pit in 
 1875, ^^d i^ 1 88 1 the authorities were informed of it, and 
 the mummies of all the great monarchs of the new empire 
 were brought to light. Great regard for the remains of the 
 dead is not exclusively a trait of the Egyptians, but they were 
 more lavish in their expenditures for the preservation of the 
 bodies of the dead than any other people. As the occurrences 
 above mentioned show, their care did not end with embalming 
 the bodies and building vast tombs for them, but continued 
 in watching and preserving the necropolis from generation 
 to generation. 
 
 Under the old empire there were six courts of justice or 
 great houses, at the head of which was a chief judge. Each 
 of the "thirty great men of the south" was a judge and dis- 
 trict chief and a member of one of the great houses. The 
 "governor of the south" alone had a seat in all. These great 
 
133 EVOLUTIO'N OF GOVERNMENTS AND LAWS 
 
 men had served as scribes and inferior officers of the court 
 before promotion to the full dignity of judges. Besides these 
 there were local judges in the towns. The special god of the 
 judges was Ma'at the goddess of truth. All judges of high 
 rank served as her high priests. During the middle empire 
 this organization of the courts disappeared. While the office 
 of chief judge continued, even under the New Empire, the six 
 great houses were no more. Under the new empire the com- 
 position of the courts varied from time to time, including 
 priests and laymen in varying proportions, but courts were 
 held at fixed places where justice was regularly administered. 
 The procedure seems to have been simple. The court being 
 seated the contending parties in civil cases came before it 
 standing. The plaintiff first preferred his complaint orally, 
 the defendant was then required to answer, after which the 
 court gave judgment. The successful party then turned to 
 the other party and stated to him the terms of the judgment, 
 whereupon the loser said, 'T do it, indeed I do it, I do it." 
 What process followed in case of failure to perform is not 
 clear. 
 
 In criminal cases the governor preferred the accusation as 
 plaintiff, and the defendant then answered to it, thereupon 
 the court seems to have filled the place substantially of a jury 
 and found the prisoner guilty or not guilty, this finding was 
 then forwarded to the Pharaoh, who pronounced sentence. 
 
 That the Egyptians had written laws there seems no reason- 
 able doubt, and it was claimed that they were composed by 
 Thoth, the god of wisdom. The ancient law books have not 
 been preserved and their contents come down to us only in 
 fragments. However complete the written laws may have 
 been, they do not appear to have restrained the kings who 
 chose to override them, yet respect for the forms of law seems 
 to have had quite a firm hold. Thus Pepy, in the Sixth Dy- 
 nasty, established a special court to inquire into the acts of 
 some of his courtiers, and Ramses III created a special court 
 to try members of his household, who had conspired against 
 him. The record of the court of the proceedings against one 
 of the conspirators is a model of brevity. 
 
EGYPT 133 
 
 "Penture formerly bore another name. He was brought 
 before the court, because he had joined with his mother Tey, 
 when she conspired with the women of the harem, and be- 
 cause he acted with hostihty against his lord. He was 
 brought before the vassals that they might question him. 
 They found him guilty, they dismissed him to his house; he 
 took his own life." Before this investigation was closed an 
 incident occurred, which reflects severely on the special court 
 organized for the investigation. It was discovered that the 
 accused women of the harem had sought out three members 
 of the commission and, with them and Pai'es, the chief culprit, 
 had "made a beer house," that is, held a revel. But they also 
 were apprehended, and ''their punishment was fulfilled by 
 the cutting off of their noses and ears." 
 
 While the power of Egypt continued to be great, it was 
 not extended after Ramses II. During the Twenty-fifth Dy- 
 nasty Egypt was ruled by Ethiopian kings, who however were 
 not strangers to Egyptian civilization, if indeed they were not 
 of Egyptian blood. At intervals after the time of Ramses 
 there were wars with the Assyrians with varying success, till in 
 the year 662 B.C. Egypt became an Assyrian province. Eight 
 years later, however, with the aid of Greek mercenaries they 
 were driven out. Psammetichus founded the Twenty-sixth 
 Dynasty, which endured a little more than a century. During 
 this period there was much intercourse with the Greeks. 
 
 In 525 B.C. Cambyses invaded Egypt and reduced it to a 
 Persian province. In the reign of Artaxerxes the Egyptians 
 revolted and were aided by the Athenians, but without suc- 
 cess. About 411 B.C. another revolt proved successful and 
 Egypt remained an independent kingdom till about 343 B.C. 
 when it was again overrun by the Persians, who maintained 
 their ascendency till Alexander's conquest. Though under the 
 Ptolemies Egypt was again an independent kingdom, it was 
 under Greek rulership. When the Romans came the ruler- 
 ship passed into their hands, and since their time there has 
 been no such nation as Egypt. Though the land, the river 
 and people are to all appearances substantially the same, the 
 spirit is wanting, and Egypt has been dead for more than two 
 
134 EVOLUTIO'N OF GOVERNMENTS AND LAWS 
 
 thousand years. Indeed the pecuHar civilization, which still 
 astonishes the world by its enduring monuments, can hardly 
 be said to have existed in full vigor much later than the twelfth 
 century B.C. 
 
 With the rise of the Asiatic and European nations, the mili- 
 tary spirit of the Egyptians developed for a time, and their 
 power was extended in all directions, yet though the Greeks 
 borrowed their arts and their learning, and the light of their 
 ancient civilization spread into Europe and Asia Minor, they 
 planted no colonies which presented new and advancing types 
 of the mother country. Nor to this day has the civilization 
 peculiar to any other country taken firm root in Egypt. To all 
 appearances the fellah of today is very nearly what his ancestor 
 of three thousand years ago was, but the ruling spirits, who 
 planned the great works and ordered the affairs of Egypt, 
 are no more. The peasant serf is there, oppressed through 
 taxation as severely as his ancestors were under the Pharaohs. 
 He has learned to submit without resistance to the burdens 
 imposed by foreign masters, as his forefathers submitted to 
 the orders of Cheops in building a pyramid. Unlike the Chi- 
 nese, the Egyptians have never been able to impose the spirit 
 of their civilization on their conquerors, nor on the other hand 
 have the conquerors been able to imbue new life into their 
 subjects and by education develop a new civilization. The 
 greatest marvel is that with the constant influx of Europeans 
 and Asiatics into the rich valley, the type of man dwelling 
 there has been modified to so slight a degree. The valley of 
 the lower Nile is the tomb of a once great people, and the 
 toiling peasants of today are hardly better representatives of 
 the ancient spirit than the mummies, which have been pre- 
 served with so much care through the long centuries. Since 
 the Greek conquest the government and laws of Egypt have 
 been such as a foreign ruler has seen fit to impose. 
 
 Authorities 
 
 J. Gardner Wilkinson: The Manners and Customs of the 
 
 Ancient Egyptians. 
 Adolph Erman : Life in Ancient Egypt. 
 
EGYPT 135 
 
 George Rawlinson : Ancient Egypt. 
 
 J. P. Mahaffy: Empire of the Ptolemies. 
 
 W. M. F. Petrie : A History of Egypt. 
 
 James H. Brestead : Ancient Records of Egypt. 
 
 James Baikie: The Glory of the Pharaohs. 
 
 Herodotus. 
 
CHAPTER VII 
 
 Chaldea, Babylonia, Judea and Persia 
 
 While only a small part of the people of Europe trace their 
 descent from inhabitants of the territory in Asia now domi- 
 nated by the Turks, religious teachings have cS.used them to 
 regard some spot in or near this territory as the earliest home, 
 not only of their own progenitors, but also of the whole hu- 
 man race. Egyptian civilization had its influence on Greeks 
 and Romans, yet it has been far less regarded than that of 
 the early people of the valleys of the Euphrates and Tigris 
 and the region bordering on the eastern end of the Mediter- 
 ranean. It is impossible to accurately measure the extent to 
 which the religion, morals, laws and governments now exist- 
 ing, not only throughout Europe but wherever Europeans 
 dominate, have been moulded by the lessons transmitted to 
 us from those people. Comparative philology teaches the 
 kinship of people long supposed to be altogether foreign to 
 each other, and the Persians, Brahmans of India, Germans 
 and allied people of Europe are all assigned to one race. 
 Nevertheless the influence of the civilization of ancient Chal- 
 dea, Babylonia, Persia, Media, Assyria, Palestine, Phoenicia 
 and Greek Asia has not descended to us with the blood of 
 ancestors but mainly by example and teachings. The Biblical 
 account of creation fills a space which substantially all people 
 fill with fanciful and romantic accounts of a beginning. Be- 
 lief in a particular account usually depends on the educational 
 influences ta which the individual is subjected. Records 
 reaching back to the origin of any race of people are of ne- 
 cessity wholly lacking. 
 
 The earliest clear evidence of man and his works in the 
 regions named is derived from the ruins of ancient cities. 
 The oldest of these of which we have knowledge are of the 
 Chaldeans, who occupied the lower valley of the Euphrates 
 
 136 
 
CHALDEA, BABYLONIA, JUDEA AND PERSIA 137 
 
 and Tigris and neighboring country. According to the Bible, 
 the IsraeHtes derived their origin from the city of Ur in 
 Chaldea. "And Terah took Abram his son and Lot the son 
 of Haran his son's son and Sarai his daughter-in-law, his 
 son Abram's wife, and they went forth with them from Ur 
 of the Chaldees to go unto the land of Canaan, and they came 
 unto Haran and dwelt there". ^ 
 
 The first people of whom any accounts are attainable, were 
 familiar with the leading mechanical arts, the use of money, 
 the cultivation of the soil, the use of domestic animals and 
 the art of writing. As in Egypt formal written contracts 
 were common and are found on the clay tablets disclosed by 
 recent excavations. Abraham bought land and paid for it 
 in silver. There were cities and villages, merchants and 
 traders as well as hunters, herdsmen and husbandmen. How 
 much or what part of their arts, if any, were borrowed is 
 not known. The earliest records introduce us to the land of 
 Shinar with its cities of Babel, Erech, Accad and Calneh and 
 out of this country went forth Asshur and builded Nineveh. 
 
 From the earliest times throughout the whole region we 
 are considering, with some exceptions hereafter noticed, the 
 character of the governments, of which we have historic ac- 
 count, was military despotism without check or limitation on 
 the power of the kings. Nothing can be more dreary than 
 the recital of the rise and fall of successive dynasties, always 
 tending to reproduce the same evils. Through the ancient 
 tablets and cylinders, the Bible and the writings of historians, 
 we are informed of the nam.es and the military feats of many 
 rulers styled successively, Chaldees, Babylonians, Assyrians, 
 Medes, Persians, Parthians, Scythians, Bactrians, Arabs, 
 Turks and Tartars. With all of them the fundamental idea 
 of government has been similar if not identical, paternal 
 kingly power. While this is clearly apparent, the structure 
 of society at different periods has undoubtedly passed through 
 many changes and modifications. These, owing to the vanity 
 of kings and the lack of independent historians, are difficult 
 to trace. The influence of the priesthood and of the religious 
 * Genesis XI-31. 
 
138 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 beliefs of the people has always been very great, and it is to 
 this portion of the earth and neighboring portions of Asia, 
 that we look as the birthplace of all the great religious sys- 
 tems, which have so j)rofoundly impressed mankind, and 
 which are now taught throughout the world. Moses, Zoro- 
 aster, Buddha, Christ and Mohammed have successively 
 taught lessons which are accepted by generation after gener- 
 ation as the direct and authoritative expression of divine 
 truth. The profound influence of these various teachings, not 
 only on private morals but on governments, human laws, cus- 
 toms and the structure of society, is to be noticed everywhere. 
 In the earliest times of which we have accounts, we find the 
 people prone to have a special god or gods for each tribe or 
 nation which gained a well defined status as such. The early 
 Hebrews did not deny the existence of other gods besides 
 Jehovah, but maintained his superiority. The Old Testament 
 mentions numerous gods of the people with whom the Israel- 
 ites contended, as really existing, but unworthy to be fol- 
 lowed. The people were taught to be faithful to their own 
 god. It is impossible to assign a date for the earliest general 
 adoption of a belief in a single god, not only supreme in 
 power but without rival or participant in authority. This 
 singleness of spiritual power accorded with the human des- 
 potisms, which have flourished in that region and contrasts 
 with the sprightly pantheon of the Greeks, who were experi- 
 mentalists and jealous of unrestrained authority. With an 
 absolute despot at the head of the government, the distribu- 
 tion of inferior and local authority was on the same princi- 
 ple. Wherever the king delegated his power to a satrap of 
 a district, he ruled as a despot, accountable only to the king. 
 The general purpose of all the diflferent rulers, of whatever 
 particular nation they chanced to come, in extending their 
 dominions, was to collect tribute. There seems to have been 
 very little disposition to interfere with the modes of life of 
 the people or the local governments, so long as the tribute was 
 paid. Egyptian conquest in Asia merely meant tribute from 
 Asia to the Pharaoh, and when Egypt became subject to the 
 Assyrians, and afterward the Persians, Egypt paid tribute to 
 
CHALDEA, BABYLONIA, JUDEA AND PERSIA 139 
 
 the king. The taxes were collected by the local authorities, 
 and the satrap accounted to the king for the full sum charged 
 to his districts. Some things relating to the primary or- 
 ganization of society are known, polygamy and slavery were 
 everywhere and at all times allowed. Surplus males were 
 consumed in wars or converted into eunuchs for ' domestic 
 service. The families and dependents of the rich were very 
 numerous. Abraham's household as described in the Bible 
 is doubtless typical of ancient as of modern patriarchal fami- 
 lies. It is not to be understood, however, that all the people 
 were included as members of such establishments. Babylon 
 and Nineveh were very great cities. In order to maintain 
 their vast multitudes of people, agriculture was carried on 
 with great industry and success. Manufacturing flourished, 
 and trade was extended to distant lands. The descriptions 
 we have of the people of Babylon indicate that it had a vast 
 combination of good and evil, like every other great city. 
 That the people were industrious, skillful and intelligent is 
 abundantly proved by history and the ruins still remaining. 
 That they were fond of luxurious living and addicted to many 
 vices hardly differentiates them from the dwellers in modern 
 cities, yet some of their customs certainly appear most 
 abominable. 
 
 The recent discovery of the Code of Hammurabi affords 
 us a copy of the written law of Babylon promulgated about 
 2250 years B.C. (A full summary of its provisions is given 
 in the Appendix.) There is no better index of the state of the 
 civilization of a people than the code of laws under which 
 they live. It indicates their industrial and business activities, 
 their vices, their superstitions and their views of social duty. 
 How long this code remained in force we are not informed. 
 It was probably 1800 years later when Herodotus visited 
 Babylon and many changes had taken place. 
 
 He tells us that once in each year in each village the maid- 
 ens of age to marry were collected all together in one place, 
 while the men stood around them in a circle. The women 
 were then sold for wives separately to the highest bidder. 
 The rich Babylonians had to bid against each other for the 
 
140 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 favorite ones, each going to the highest bidder. When all 
 the beauties were sold and the men ceased to bid, the ugly 
 ones were sold to those who would take them with the least 
 marriage portion, which was made up from the prices re- 
 ceived from the sale of the loveliest. He mentions this as an 
 excellent ' custom, but says it had fallen into disuse in his 
 time, and that instead, the poor of the common people raised 
 their daughters to be courtesans. This he attributes to the 
 oppression of the rulers. He relates what he terms a most 
 shameful custom connected with the worship of the Babylon- 
 ian Venus. "Every woman born in the country must once 
 in her life go and sit down in the precinct of Venus and 
 there consort with a stranger." Seated in the enclosure of 
 the temple with wreaths of strings about her head she must 
 wait till a stranger throws her a coin and says ''The goddess 
 Mylitta prosper thee." She must then go with him whoever 
 he be. He adds, that when this religious rite has been per- 
 formed, no gift however great will prevail with her. This 
 hardly seems a fair statement after reading what is said of 
 the prevalence of prostitution. 
 
 It seems reasonably certain that public morals were low 
 at and after the time of which Herodotus wrote, and very 
 probable that they were never high. The Old Testament is 
 filled with narrations of the vile customs of the early Israelites 
 as well as of the people with whom they came in contact, of 
 whom apparently the Egyptians were the best, yet pure do- 
 mestic life was not wholly unknown. Away from the cities 
 and perhaps also within them the village system prevailed. 
 The people lived under great diversity of conditions. 
 
 Xenophon describes an Armenian village with houses un- 
 derground entered by a well, with passage into them for their 
 cattle, goats, sheep and fowls. There was a head man of the 
 village. Seventeen colts bred as a tribute for the king, and 
 provisions in plenty and considerable variety were found. 
 In his march from the scene of the battle in which Cyrus was 
 killed to Colchis, Xenophon mentions the villages of the 
 Medes, Carducians and Armenians, but nowhere isolated 
 dwellings. The Persians had some idea of established law 
 
CHALDEA, BABYLONIA, JUDEA AND PERSIA 141 
 
 beyond mere custom, and of the steady adherence to fixed 
 rules for the* determination of rights. Their laws were pro- 
 mulgated by the king recorded by scribes and proclaimed 
 throughout the empire. There were judges appointed by the 
 king. Herodotus says that Cambyses, wishing to marry his 
 sister, a thing contrary to Persian custom, 
 
 "Called together the regal judges and put it to them 
 'whether there was any law which allowed a brother, if he 
 wished, to marry his sister.' Now the royal judges are certain 
 picked men among the Persians, who hold their office for life, 
 cr until they are found guilty of some misconduct. By them 
 justice is administered in Persia and they are the interpreters 
 of the old laws, all disputes being referred to their decision. 
 When Cambyses therefore put this question to these judges, 
 they gave him an answer which was at once true and safe, 
 "they did not find any law," they said, "allowing a brother to 
 take his sister to wife, but they found a law that the king of 
 the Persians might do whatever he pleased." 
 
 While the Persian system was loose and imposed but little 
 restraint on the satraps, either in the exercise of their author- 
 ity over the people under them or in organizing a revolt, there 
 were some regulations tending to efficiency and stability of 
 the government. Royal commissioners were sometimes sent 
 to inspect the workings of the government throughout the 
 empire, and a system of posts was maintained by which dis- 
 patches were forwarded rapidly. The garrisons in the cita- 
 dels, as well as the army in general, were under the command 
 of officers appointed by the king and not subject to the sat- 
 raps. As all histories deal so much with wars and so little 
 with peaceful conditions, we have to infer what took place 
 in times of peace from the conditions described during times 
 of war. In the perspective war occupies a greatly exaggerated 
 space and creates the impression that the people were engaged 
 in little else than fighting, when in fact peace was the rule. 
 The earliest Babylonians were temple builders and devoted to 
 their gods. Strong religious tendencies have ever been char- 
 acteristic of the people of all the portion of Asia of which 
 \ye are now treating. The idea of government seems to have 
 
142 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 persistently adhered to a single unlimited monarch. With 
 the grosser forms of religious worship and with Ihe corrupted 
 organizations which profess the purer ones, form and cere- 
 monial always fill a great space. These forms, to be impres- 
 sive, must be marked out and defined by fixed rules, to which 
 the people become accustomed. Revenues to maintain the 
 priesthood and the temples must be derived by a system of 
 tributes, paid really to the priests, but exacted in the name 
 of the deities. The alliance between the sovereign and the 
 priesthood was necessarily close and, during much of the 
 time, the king was the spiritual as well as the temporal head. 
 In ancient Assyria the laws were promulgated in the name 
 of Asshur, the head of their pantheon, as the Jews used the 
 name of Jehovah to give sanction to theirs. The temples of 
 the Assyrian and Babylonian gods required the attendance of 
 a numerous priesthood, withdrawn partly and often entirely 
 both from participation in military operations and ordinary 
 callings. The system of irrigation by the aid of artificial 
 canals, under which the valleys of the Tigris and Euphrates 
 were brought to a high state of cultivation, evidences settled 
 social order for a considerable period prior to the time of 
 Hammurabi. The cities themselves could only come into 
 existence under conditions of order and security to person 
 and property. 
 
 Recent researches have thrown much light on ancient Baby- 
 lonian institutions, and many ancient tablets on which were 
 written deeds and contracts of various kinds have been ex- 
 humed and interpreted. Judicial functions were exercised by 
 the priesthood, who also acted in the capacity of notaries 
 and witnesses of written contracts, and the parties took an 
 oath to perform the contract, the whole being attested by the 
 priest and other witnesses. A deed to property seems to 
 have been generally treated as a mortgage, which could be 
 discharged on repayment of the purchase price, unless the 
 vendor expressly renounced the right to redeem, in the deed. 
 Even this did not cut off the right of his heir to recover the 
 land by paying back the price. Sometimes the heirs joined 
 in the deed in order to cut off the right of redemption. Mort- 
 
CHALDEA, BABYLONIA, JUDEA AND PERSIA 143 
 
 gages were familiar, the earliest form being that in which 
 the use of land was transferred to the lender for the use of 
 the money, rent being set off against interest. When the 
 money was repaid the land was returned. Mortgages of lands 
 and chattels were common. The business of banking was 
 well developed and seems to have been largely in the hands of 
 the priesthood. Interest was allowed and bottomy bonds, 
 bearing a high rate but under which the lender got nothing 
 in case of loss of the property by shipwreck, were common, 
 as also were contracts of hiring, lease, partnership and other 
 business transactions, and were executed with that freedom 
 which always obtains in a great commercial city. 
 
 In religion these people were polytheists, and their pan- 
 theon was as well stocked as that of the imaginative Greeks. 
 The personal qualities attributed to their several gods were 
 so similar in many instances as to suggest identity. The 
 genius for city building moved from the valleys of these 
 rivers to the countries bordering on the Euxine and Mediter- 
 ranean seas and afterward spread wherever the Greeks be- 
 came dominant. But, so far as we know, the genius for 
 popular government in cities was never developed in Asia, 
 except in the Greek cities near the coast. Among the rural 
 population, dwelling in their villages, tilling the soil and rear- 
 ing domestic animals, there was a degree of independence. 
 Herodotus speaks of the Medes revolting from the Assyrians 
 and gaining their freedom, after having been subject to the 
 latter for 520 years, and then tells how Duoces by playing 
 the part of an upright judge succeeded in gaining kingly 
 power. Herodotus saw through Greek eyes. Though Medes 
 and Persians were fond of liberty perhaps in their early 
 history, they had no genius for the establishment of any form' 
 of government other than that of an arbitrary despotism. 
 
 JUDEA 
 
 The Jews afford us through the Bible a later and more 
 complete system of written laws than that of Hammurabi. 
 Some of it was similar to and borrowed from Egypt's older 
 civilization. Some of it was drawn from Babylon. All their 
 
144 EVOLUTIO-N OF GOVERNMENTS AND LAWS 
 
 laws, whether prescribing rules of conduct governing the re- 
 lations between individuals or declaring religious duties and 
 imposing burdens for the support of the priesthood, were 
 promulgated as divine commands. The religious veneration, 
 with which everything found in the Hebrew records has been 
 regarded by the Christian world, renders it difficult to dis- 
 passionately attempt to separate the truth of history from the 
 setting of oriental exaggeration in which it is contained. 
 When or by whom the writings passing under the name of 
 the books of Moses were written is unknown. It can be said 
 however, with confidence, that all the Old Testament has come 
 down to us through the Jewish priesthood. Whether the 
 regulations to be found in the five books attributed to Moses 
 were in fact promulgated by him or not, it is clear that there 
 was a concurrence in establishing these laws of both the tem- 
 poral and the spiritual head of the Israelites. The authority 
 which the people recognized was not Moses nor Aaron, but 
 the unseen God, from whom it was proclaimed that the com- 
 mands emanated. The purpose of all conscientious legisla- 
 tors is to find and declare the rules which tend to promote the 
 welfare of all. Many of the regulations contained in the 
 laws attributed to Moses would appear to have but little ap- 
 plication to a wandering horde, such as the Israelites were in 
 their journey from Egypt to Palestine. It is not recorded 
 that they then acquired any territory for the purpose of per- 
 manent occupancy, yet there are very definite laws concerning 
 real property. The people must have been very filthy and 
 immoral, , for a large part of the religious observances en- 
 joined tend to cleanliness and orderly conduct. That their 
 wealth consisted largely of cattle, sheep and other live stock 
 is evidenced by the extent of the regulations concerning such 
 property. Pigeons seem to have been extensively bred and 
 were much used in the offerings. 
 
 The ten commandments are written as the words of God 
 repeated by Moses. The first four relate solely to matters of 
 religion, but are regarded as authoritative and binding 
 throughout Christendom today, and Sunday is observed as the 
 Sabbath of his law. The fifth is an admonition to respect 
 
CHALDEA, BABYLONIA, JUDEA AND PERSIA 145 
 
 parents, more or less regarded. The remaining five are uni- 
 ersally regarded as binding moral laws, the violation of either 
 of which is a sin. While these commandments have been 
 held of such high authority by all Christians, the other laws 
 declared by Moses are not so well respected. Slavery even 
 of Hebrews was recognized. 
 
 "If thou buy an Hebrew servant, six years he shall serve 
 and in the seventh he shall go free for nothing." If bought 
 with a wife, the wife went free with him, but if given a wife 
 by the master, the wife and her children belonged to the 
 master. ''And if the servant shall plainly say I love my 
 master, my wife and my -children I will not go out free, then 
 his master shall bring him unto the judges, he shall also 
 bring him to the door or unto the door post; and his master 
 shall bore his ear through with an awl, and he shall serve 
 him forever." 
 
 Daughters sold as servants were not given their freedom 
 but, if taken to wife by the master or his son, were to be 
 treated as wives and not sold to a strange nation. Murder of 
 malice was punished with death, but a sanctuary was allowed 
 for excusable homicide. The law of domestic relations in- 
 culcated respect for both father and mother. Polygamy was 
 permitted and in some instances almost compulsory. Mar- 
 riage was encouraged, and a newly married man was exempt 
 from going to war for a year. If brethern dwelt together and 
 one of them died childless, the surviving brother should marry 
 the widow and her first born should succeed in the name of 
 the dead brother. If the survivor refused to marry the widow, 
 she might call him before the elders and have him condemned, 
 and in their presence she shall "Loose his shoe from off his 
 foot, and spit in his face and shall answer and say. So shall 
 it be done unto that man that will not build up his brothers 
 house." 
 
 The law of divorce was that, "When a man hath taken a 
 wife and married her, and it come to pass that she find no 
 favor in his eyes, because he hath found some uncleanness in 
 her, then let him write her a bill of divorcement and give it 
 
146 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 in her hand and send her out of the house." She may then 
 marry again. ^ 
 
 In Numbers chapter v. a provision is made for testing the 
 faithfulness of a woman whose husband is jealous of her, 
 which is similar to and probably suggested the medieval trials 
 by ordeal. The status of women was not wholly dissimilar 
 to that under the English common law. The vows (con- 
 tracts) of men were binding, but those of unmarried daugh- 
 ters might be annulled by the fathers and of married women 
 by their husbands on the day when made, otherwise they 
 should stand. Widows and divorced women were bound. 
 
 The law of inheritance, as first established, seems to have 
 recognized the rights of males only, but on the complaint of 
 the daughters of Zellophehad it was amended as follows : "If 
 a man die and have no son, then ye shall cause his inheritance 
 to pass unto his daughters. And if he have no daughters, 
 then ye shall give his inheritance unto his brethern. And if 
 he have no brethern, then ye shall give his inheritance unto 
 his father's brethern. And if his father have no brethern, 
 then ye shall give his inheritance unto his kinsman that is next 
 to him of his family."^ 
 
 There was a settled policy, well calculated to preserve to 
 each family its inheritance and prevent the crafty from per- 
 manently engrossing the land or chattel property. Every 
 fiftieth year was a year of jubilee, when all inheritances of 
 land went back to the vendor. A sale could only be made 
 till the next jubilee, except in walled towns, where a redemp- 
 tion in a year was allowed. A similar principle was thus ap- 
 plied to chattels. 
 
 "At the end of every seven years thou shalt make a release. 
 And this is the manner of the release. Everyone that lend- 
 eth aught unto his neighbor shall release it, he shall not exact 
 it of his neighbor or of his brother because it is called the 
 Lord's release. Of a foreigner thou mayest exact it again. "^ 
 
 "And six years thou shalt sow thy land and shalt gather in 
 
 ^ Deut. xxiv. 1-2. 
 ' Numbers xxvii. 
 * Deut. XV. 1-2-3. 
 
CHALDEA, BABYLONIA, JUDEA AND PERSIA 147 
 
 the fruits thereof. But the seventh year thou shalt let it rest 
 and lie still that the poor of thy people may eat: and what 
 they leave the beasts of the field shall eat. In like manner 
 thou shalt deal with thy vineyard and thy oliveyard."^ 
 
 Usury was strictly forbidden except when taken from 
 strangers, and pledges of raiment must be returned by sun- 
 down. For all manner of trespasses the parties should come 
 before the judges and the party condemned should pay double. 
 The protection of servants against the cruelty of masters was 
 exceedingly meager. "And if a man smite his servant or his 
 maid with a rod and he die under his hand, he shall surely be 
 punished. Notwithstanding if he continue a day or two he 
 shall not be punished for he is his money." 
 
 If a man put out the eye or tooth of a man or maid servant 
 he or she shall go free. If an ox kill a person the ox must 
 be killed, but, if the ox has been wont to push with his horn 
 in time past, the owner shall be put to death unless he pays 
 his ransom. If the ox kill a servant, the owner of the ox 
 shall pay the master thirty shekels of silver. A thief must 
 pay three for one for an ox and four for one for a sheep; 
 and if caught in the act and killed, no blood shall be shed 
 for him. A party caught with stolen property must pay 
 double. 
 
 The criminal law was primitive and merciless. The punish- 
 ments were death, maiming, beating or fine. The following 
 offenses were punished with death: Murder, manstealing, 
 cursing father or mother, adultery (both parties), witchcraft, 
 lying with a beast, idolatry. 
 
 "If thy brother the son of thy mother or thy son or thy 
 daughter or the wife of thy bosom or thy friend who is as 
 thine own soul, entice thee secretly saying, Let us go and 
 serve other gods which thou hast not known, thou nor thy 
 fathers," thou shalt not consent "But thou shalt surely kill 
 him, thine hand shalt be first upon him to put him to death 
 and afterward the hand of all the people." The father and 
 mother of a "stubborn and rebellious son" might bring him 
 before the elders at the gate of the city and have him con- 
 
 ^Exodus xxiii, 10 and 11. 
 
148 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 demned to be stoned to death. It hardly seems possible that 
 there could be use for such a law. 
 
 For offenses deemed of inferior degree the lex talionis had 
 full sway, and is nearly identical with the code of Hammurabi. 
 
 ''Eye for eye, tooth for tooth, hand for hand, foot for foot, 
 burning for burning, wound for wound, stripe for stripe." 
 
 Very definite and minute provision was made as to what 
 might be eaten and as to the manner in which animals should 
 be slaughtered for food and the use of the different parts. 
 These were in part sanitary regulations but more to insure 
 the priests their living. 
 
 ''The priests, the Levites and all the tribe of Levi shall have 
 no part nor inheritance therein with Israel. They shall eat 
 the offerings of the Lord made by fire and his inheritance."^ 
 
 By far the greater space in the law is occupied with regu- 
 lations relating to religion and religious ceremonies, and great 
 care is taken to insure the maintenance and influence of the 
 priesthood. All the books, especially that of Leviticus, con- 
 tain very numerous rules relating to burnt offerings, meat 
 offerings, peace offerings, sin offerings, trespass offermgs, 
 first fruits and other offerings from which the priests were 
 supported. The priestly dress was regulated. The Levites 
 were assigned cities (villages) with suburbs for their cattle, 
 among which were six cities of refuge for criminals, into 
 which the avenger of blood might not pursue one guilty of 
 homicide, unless committed with premediation. The priest- 
 hood was the instrumentality mainly relied on by Moses for 
 the maintenance of his system, which in this respect strongly 
 resembled the Egyptian. The observance of his laws would 
 keep the priests in close contact with all the people substan- 
 tially all the time, and obedience to all these minute regula- 
 tions was enjoined as a religious duty. 
 
 Among the most remarkable provisions in the laws of 
 Moses are those imposing restrictions on the rulers, and pro- 
 viding for the promulgation and perpetuation of a code of 
 written laws by which the rights of all were to be measured. 
 
 •Deut. xviii. 9. 
 
CHALDEA, BABYLONIA, JUDEA AND PERSIA 149 
 
 The people were permitted to have kings, Hke as other na- 
 tions, but with Hmitations on their powers. 
 
 ''But he shall not multiply horses to himself nor cause the 
 people to return to Egypt to the end that he should multiply 
 horses, forasmuch as the Lord hath said unto you, Ye shall 
 henceforth return no more that way. Neither shall he multi- 
 ply wives to himself that his heart turn not away, neither shall 
 he greatly multiply silver and gold. And it shall be when he 
 sitteth upon the throne of his kingdom, that he shall write him 
 a copy of this law in a book, out of that which is before the 
 priests, the Levites. And it shall be with him, and he shall 
 read therein all the days of his life."'^ 
 
 ''Judges and officers shalt thou make thee in all thy gates, 
 which the Lord thy God giveth thee throughout thy tribes, 
 and they shall judge the people with just judgment. Thou 
 shalt not wrest judgment, thou shalt not respect persons, 
 neither take a gift, for a gift doth blind the eyes of the wise 
 and pervert the words of the righteous."^ 
 
 Appeals from inferior to superior courts were provided for. 
 
 "If there arise a matter too hard for thee in judgment, be- 
 tween blood and blood, between plea and plea and between 
 stroke and stroke, being matter of controversy within thy 
 gates, then shalt thou arise and get thee up into the place 
 which the Lord thy God shall choose. And thou shalt come 
 unto the priests, the LeVites, and unto the judge that shall be 
 in those days and inquire, and they shall shew thee the sen- 
 tence of judgment. And thou shalt do according to the 
 sentence which they of that place which the Lord shall choose 
 shall shew thee."^ In the determination of criminal causes 
 the rule concerning the amount of evidence required was, 
 "One witness shall not rise up against a man for any iniquity 
 or for any sin that he sinneth; at the mouth of two wit- 
 nesses or at the mouth of three witnesses shall the matter be 
 established.''^^ 
 
 Although the date of Moses' death is assigned to about the 
 year 1450 B.C. and although the little nation for which he 
 
 ^ Deut. xvii. 16 and 19. ^ Deut. xxi. 18-19. 
 
 "Deut. xvii. 8-9-10. *" Deut. xix. 15. 
 
ISO EVOLUTION OF GOVBRNlVrENTS AND LAWS 
 
 framed his laws was often at the mercy of its foes, in cap- 
 tivity and finally scattered over the face of the earth as out- 
 casts, his laws are to be found at this day in the households 
 of millions of alien people in apparently complete form. This 
 seems in some measure due to the provisions made by him 
 for their preservation, but more to their religious sanction 
 and the promulgation of the laws as the word of the God 
 who watched over the Israelites as his chosen people and yet 
 more to the spread of Christianity. The people were com- 
 manded by Moses after they should pass over Jordan to set 
 up great stones and plaster them and "write upon the stones 
 all the words of this law very plainly." Blessings were called 
 down on all who obeyed and curses on those who disobeyed. 
 *'And Moses wrote this law and delivered it unto the priests, 
 the sons of Levi, which bore the ark of the covenant of the 
 Lord, and unto all the elders of Israel and Moses commanded 
 them saying. At the end of every seven years in the solemnity 
 of the year of release in the feast of the tabernacle, when all 
 Israel is come to appear before the Lord thy God in the place 
 which he shall choose, thou shalt read this law before all 
 Israel in their hearing."^^ 
 
 In the early days authority was exercised by the priests, and 
 the general in time of war, but there was no king. 
 
 "In those days there was no king in Israel, every man did 
 that which was right in his own eyes."^^ 
 
 (B.C. 1400.) Afterward when Samuel was chief priest the 
 people wanted a king. 
 
 "Then all the elders of Israel gathered themselves together 
 and came to Samuel unto Ramah, and said unto him, Be- 
 hold thou art old and thy sons walk not in thy ways, now 
 make us a king to judge us like all the nations. But the thing 
 displeased Samuel." He told them the evil consequences of 
 having a king but they insisted. ^^ 
 
 Saul was then made king. "And all the people shouted and 
 said God save the king." Saul's authority was not fully rec- 
 ognized however, and it was not till David was anointed that 
 
 "Deut. xxxi. 9-I0-II. "Judges xxi. 25. "i Samuel viii. 
 
CHALDEA, BABYLONIA, JUDEA AND PERSIA 151 
 
 the kingly authority was estabHshed. Under his son Solomon 
 the nation attained its maximum of wealth and power, which, 
 as compared with that of either Egypt, Babylon, Assyria or 
 Persia at its best, was not great. Though the written law of 
 Moses seems to have been preserved intact, it does not ap- 
 pear to have ever been very rigidly observed, nor to have 
 been eminently successful as a religious establishment. Even 
 Solomon, the model of all Hebrew Kings, violated the law by 
 greatly multiplying his riches, and by taking to himself a 
 vast number of wives (700), and concubines (300). In the 
 accumulation of his harem he did not confine himself to selec- 
 tions from the twelve tribes, but gathered from among the 
 heathens, and as a result became tolerant of all the gods and 
 erected places for the worship of other Gods besides Jehovah. 
 Throughout much of the Old Testament there is constant 
 recognition of the existence of Baal and numerous other gods, 
 but Jehovah was the special god of Israel, from whom alone 
 they might hope for help. The Bible records many times 
 when the people generally abandoned the worship of God and 
 adopted that of the gods of other people. The lesson con- 
 stantly taught is that this was always followed by disaster, 
 and that prosperity only came through strict adherence to the 
 national worship. The history of the Israelites from the 
 time of Moses to the days of Christ, is an alternation of peace 
 and war, adherence to the Mosaic law and abandonment of 
 it, success and adversity, independence and subjection to for- 
 eign power, corresponding in all material respects to that of 
 surrounding nations. In morals they do not seem to have 
 been materially above or below the general average of their 
 neighbors. In power and material development they were 
 quite insignificant as compared with the Chaldeans, Babylon- 
 ians, Assyrians, Persians or Egyptians. Jerusalem at its 
 best was but a village as compared with Babylon or Nineveh. 
 Yet the influence of this small nation on succeeding genera- 
 tions has vastly exceeded that of all the others combined. 
 This influence is due, first to the preservation of the Mosaic 
 law and, second but far more, to the Christian teachings of 
 the new law of love and mutual help. 
 
152 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 We regard the present as an age of invention in Europe and 
 America. It is not the first however. While we cannot defi- 
 nitely fix time or place nor speak on the subject with absolute 
 certainty, all we do know indicates that there was, before the 
 days of Moses, a period of great mental activity and invention. 
 The foundations of modern achievements seem to have been 
 laid somewhere in or near the regions treated of in this 
 chapter. The art of smelting iron, copper and many other 
 metals was carried to an advanced state of perfection. Archi- 
 tecture produced immense structures in which the beautiful 
 sought expression in accordance with the taste of the times. 
 The art of weaving fabrics was developed. Hydraulic en- 
 gineering achieved triumphs little if any short of those boasted 
 by modern engineers, and the rich country of the Tigris and 
 Euphrates, which now lies desolate from lack of the ancient 
 system by which the waters of the rivers were utilized, was 
 them a vast garden, rivaling if not leading in productiveness 
 the most favored portions of the globe in any age. But more 
 valuable than all these was the invention of letters, since 
 changed in form and number by different people, yet afford- 
 ing the foundation of all written language in the western 
 world. Of all the literary people the Chinese alone can claim 
 the invention of another separate and complete system of 
 written characters. Whether any of these inventions were 
 made under the despotic governments of which history in- 
 forms us cannot be told. Letters do not record the time, 
 place or manner of their own creation. 
 
 It seems strange that so little definite history or description 
 cf the government of the Phoenicians can be given. They 
 were renowned for manufactures and commerce. Their ships 
 went to all ports of the Mediterranean Sea, but their colonies 
 were mostly on the African side. The accounts of Carthage 
 received from Roman sources are doubtless much colored by 
 their hostility. 
 
 The dynasty established as a sequence of Alexander's con- 
 quest did not long retain marked Greek characteristics, but 
 soon degenerated and became in fact a typical oriental despot- 
 ism. The Greeks adopted Persian customs rather than im- 
 
CHALDEA, BABYLONIA, JUDEA AND PERSIA 153 
 
 posed their own. There were Greek cities along the coasts 
 where Greek civilization prevailed for many centuries. Fol- 
 lowing the downfall of Macedonian supremacy came the Ro- 
 man conquest of the country west of the Euphrates. Toward 
 the east the Persians with varying fortunes and under nu- 
 merous dynasties have during most of the time maintained 
 their supremacy. But whether the ruler was Persian, Mede, 
 Bactrian, Turk, Mogul or Musselman, he has always been a 
 despot, sometimes a wellmeaning and sometimes an able one, 
 but usually a cruel, idle voluptuary. The advent of Christ 
 had little effect on the political conditions of the country of 
 his birth. Not till the Crusades was an attempt made to as- 
 sert temporal authority there in his name. The influence of 
 his teachings, though not wholly wasted in Asia, was far 
 less potent than that of Mohammed, whose system was bet- 
 ter suited to oriental tastes and character. 
 
 The difficulty with all their systems was that no effectual 
 check was provided against the exercise of arbitrary power. 
 Those who are inclined to clamor for speedy justice may read 
 of striking illustrations of it in the book of Daniel, where the 
 story is told of the restributive justice meted out to Daniel's 
 accusers, who were thrown into the lion's den and torn to 
 pieces by the king's command, or in the book of Esther in 
 which is recorded the hanging of Haman on the gallows he 
 erected for Mordecai, and the license given to and used by 
 the Jews by command of Ahasuerus to slaughter their ene- 
 mies. The king and his satraps were really restrained only 
 by their own feelings or interests and constantly exercised 
 arbitrarily the power to put to death, often in cruel ways, and 
 to seize the property of their subjects. 
 
 The theory of the Persian government remained despotic 
 till very recent times, but modern influences have been felt in 
 the land of the ancient despotism. On August 5, 1906 
 Muzaffar-ud-Din, Shah, issued a rescript undertaking to form 
 a national council — Majlis — representing the whole people. 
 The Majlis was elected and opened by the shah in person on 
 October 7, 1906. Muzaffer died in January 1907 and his son 
 Mohammed Ali Mirza on his accession to the throne pledged 
 
154 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 himself to support the constitution. A revolution occasioned 
 by a clash between the shah and the Majlis resulted in the 
 deposition of AH and the choice of his young son Ahmad 
 Mirza. On November 15, 1909 a newly elected MajHs was 
 opened by the shah. 
 
 The Majlis is composed of representatives of the dominant 
 classes and numbers 162 members (sixty from Teheren and 
 102 from the provinces). Electors must be males, Persian 
 subjects not less than twenty-five years old and of good 
 repute. The executive government is carried on by a cabinet 
 of eight ministers. 
 
CHAPTER VIII 
 
 Arabia 
 
 Were it not for the marvelous career and lasting influence 
 on a large portion of the human race of one man as a relig- 
 ious teacher and law giver, Arabia would be given but small 
 space in this work. The people were allied on one side with 
 the neighboring Asiatic population and classed as of Semitic 
 stock, and on the other were intermixed with African blood 
 of the Egyptian and Abyssinian stocks. Nevertheless the 
 Arab is of a type quite as well marked as any of his neighbors 
 and has been so for untold centuries. Modes of life and 
 social systems appear to have been moulded by natural con- 
 ditions. In Yemen, which has ever been rich and fruitful, 
 the people have dwelt in settled communities, cultivated the 
 soil and maintained a strong monarchical government, which 
 is said to have lasted 2500 years before Mohammed, and to 
 have extended its power over most of the south half of the 
 peninsula. In the interior and desert portions, where settled 
 agriculture is impossible, but precarious pasturage affords 
 sustenance for flocks and herds, the wandering tent dwelling 
 Bedouins moved from place to place with their live stock, 
 recognizing no settled government beyond their tribal leaders. 
 Though brought in contact with the ancient civilizations of 
 Egypt, Babylonia and India through its traders, so far as 
 known Arabia developed and preserved its own peculiar types. 
 Our common system of expressing numbers by figures is per- 
 haps the only Arabic invention with which we are familiar, 
 but it may well be that this is not all for which we are in- 
 debted to them, so meager and imperfect are the records of 
 past events. 
 
 Mohammed grew up under a tribal system which recog- 
 nized no superior authority. Mecca, though a city of no 
 great size was occupied by clans having no common head. 
 
 iSS 
 
IS6 EVOLUTIO'N OF GOVERNMENTS AND LAWS 
 
 The Koraish, by which general term the clans in and about 
 Mecca were known, were traders whose caravans brought 
 goods from Syria and Persia, which were sold at the fairs 
 in Mecca. Knowledge of reading and writing was general 
 among them. 
 
 Neither the Abyssinian Christians nor the Persian fire 
 worshipers had been able to subjugate Mecca. Mohammed's 
 parents died during his early youth and he grew up in ex- 
 treme poverty first in his grandfather's, and then his uncle's, 
 family. At twenty-five he entered the service of Khadija, a 
 wealthy widow for whom he traveled to Palestine and Syria. 
 Afterward he married her. He became familiar with the 
 Hebrew scriptures and traditions and with the tenets of the 
 Christians. To the many forms of idolatry which he found 
 prevailing, not only among the followers of ancient Arabic 
 faiths, but also among the Christians of his day, he con- 
 ceived a most intense aversion. He was a profound believer 
 in the unity of God. Mohammed laid no claim to divinity, 
 not even to direct personal communion with God, but to hav- 
 ing received the words of the Koran through the angel 
 Gabriel. He posed merely as the apostle of God. He did 
 not profess to proclaim a new religion, but merely to restore 
 in its purity the ancient Jewish monotheism. He gave the 
 great characters of the Bible recognition as prophets, and 
 while he denied the divinity of Christ, his authority as a 
 prophet and teacher is maintained. The Koran, though re- 
 garded by Mohammedans as a wonderful literary production, 
 contains little to admire, when translated into English. Its 
 repetition of the Bible stories, with variations of form, are 
 tedious and uninstructive. The strength of his revelations 
 seems to lie in the vigorous proclamation of the unity and 
 power of God, and in the rewards offered to the true believers 
 of a paradise suited to the sensual desires of the people to 
 whom he spoke, and the hot torments of hell denounced as a 
 punishment to those who refused to accept the Koran. The 
 God he proclaimed was an intensely personal one, who took 
 a keen and active interest in human affairs and rewarded and 
 punished in ample measure. His doctrines tended directly to 
 
ARABIA 157 
 
 the establishment of civil power under religious sanction, and 
 Mohammed stands out in bold relief as the founder of a 
 religious sect, who was at the same time the founder of an 
 empire over subjects unaccustomed to submit to despotic rule. 
 Although the Koran is the law for all Mohammedan countries 
 and is accepted as based on divine authority, it is exceedingly 
 meager in its rules of conduct, and is adapted to such condi- 
 tions as the prophet was familiar with. The moral tone is 
 superior to most of the Old Testament, but quite inferior to 
 that of the New. As in the laws of Moses, the first and chief 
 concern was to provide for the support and maintenance of 
 the religion. From first to last the worship of the true and 
 living God is enjoined, rewards are promised for the true 
 believers and punishments denounced for the infidels. 
 
 The religious teachings and the code of laws put forth by 
 Mohammed can best be studied in the Koran, in which is 
 written the revelations which Mohammed claimed were sent 
 down to him. The following extracts the text will give 
 a clearer idea of Mohammed's system than any summary of 
 or comment on the Koran. The great influence Mohammed 
 has exerted over a large part of the earth through so many 
 centuries, in religion and as a law-giver, render his works of 
 peculiar interest. The fanatical spirit which animated his 
 followers is expressed in the following text: "When ye en- 
 counter the unbelievers strike off their heads until ye have 
 made a great slaughter among them, and bind them in bonds ; 
 and either give them a free dismission afterwards or exact a 
 ransom until the war shall have laid down its arms."^ "And 
 as to those who fight in defense of God's true religion, God 
 will not suffer their works to perish; he will guide them and 
 dispose their hearts aright; and he will lead them into Para- 
 dise of which he hath told them, God hath preferred those 
 who fight for the faith above those who are still by adding 
 unto them a great reward."^ 
 
 "The description of Paradise which is promised unto the 
 pioits, therein are rivers of incorruptible waters and rivers of 
 
 ^ Ch. 47. Sales' Koran. 
 "" Id. Ch. 4, p. 65. 
 
158 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 milk the taste whereof changeth not, and rivers of wine, 
 pleasant unto those who drink, and rivers of clarified honey, 
 and therein shall they have plenty of all kinds of fruits, and 
 pardon from their Lord. Shall the men for whom these 
 things are prepared be as he who must dwell for ever in 
 hell fire and will have the boiling water given them to drink 
 which shall burst their bowels." "Verily this present life is 
 only a play and a vain amusement; but if ye believe and fear 
 God He will give you your rewards. He doth not require of 
 you your whole substance, if He should require the whole of 
 you and earnestly press you, ye would become niggardly and 
 it would raise your hatred against His apostles. Behold ye 
 are those who are invited to expend part of your substance 
 for the support of God's true religion ; and there are some 
 of you who are niggardly. But whosoever shall be niggardly 
 shall be niggardly toward his own soul."^ 
 
 ''These are they who shall approach near unto God, they 
 shall dwell in gardens of delight. . . . Reposing on couches 
 adorned with gold and precious stones, sitting opposite to one 
 another thereon. Youths which shall continue in their bloom 
 forever shall go round about to attend them with goblets and 
 beakers and a cup of flowing wine ; their heads shall not ache 
 by drinking the same neither shall their reason be disturbed; 
 and with fruits of the sorts which they shall choose and the 
 flesh of herds of the kinds which they shall desire, and there 
 shall accompany them fair damsels having large black eyes 
 resembling pearls hidden in their shells, as a reward for that 
 which they shall have wrought. They shall not hear therein 
 any vain discourse or any charge of sin but the only saluta- 
 tion Peace, Peace. And the companions of the right hand, 
 . . . shall have their abode among the lote trees free from 
 thorns and trees of mauz loaded regularly with their produce 
 from top to bottom, under an extended shade near a flowing 
 water and amidst fruits in abundance which shall not fail nor 
 shall be forbidden to be gathered; and they shall repose 
 themselves on lofty beds. Verily we have created the damsels 
 
 'Id. Ch. 4. 
 
ARABIA 159 
 
 of paradise by a peculiar creation, and we have made them 
 virgins, beloved by their husbands of equal age with them, 
 for the delight of the companions of the right hand."^ 
 
 "And they who believe not shall have garments of fire 
 fitted unto them ; boiling water shall be poured on their heads, 
 their bowels shall be dissolved thereby also their skins shall 
 be beaten with maces of iron."^ 
 
 The duty of giving alms is frequently enjoined, and this 
 generally meant making contributions for the support of the 
 faith. Mohammed himself applied all his receipts to the use 
 of his followers, with no desire to amass wealth, and alms 
 with him really meant charitable contributions, except when 
 used to propagate the word with the sword. The doctrines 
 he taught were not above the comprehension of his followers, 
 and the rewards promised were of the sort most pleasing to 
 them. The punishments denounced against unbelievers were 
 well calculated to terrify, and to these persuasions he added 
 a vigorous policy for organization and extension of his tem- 
 poral power. The command to pray was peremptory. 
 
 "Regularly perform thy prayer at the declension of the 
 sun, at the first darkness of the night and the prayer of day 
 break, for the prayer of day break is borne witness unto by 
 the angels. And watch some part of the night in the same 
 exercise as a work of super-errogation for thee ; peradventure 
 thy Lord will raise thee to an honorable station, and say O! 
 Lord cause me to enter with a favorable entry, and cause me 
 to come forth with a favorable coming forth, and grant me 
 from thee an assisting power. And say truth is come and 
 falsehood is vanished; for falsehood is of short continuance."^ 
 
 The domestic customs prevailing in Arabia in the time of 
 Mohammed were substantially like those of ancient Judea, 
 Egypt and Persia and his teachings did not call for radical 
 changes. "And give the orphans when they come of age 
 their substance, and render them not in exchange bad for 
 good, and devour not their substance by adding it to your 
 substance, for this is a great sin. And if ye fear that ye 
 
 *Id. Ch. 56. 'Id. Ch. 22. 'Id. Ch. 17. 
 
i6o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 shall not act with equity towards orphans of the female sex, 
 take in marriage of such other women as please you, two or 
 three or four and not more. But if ye fear that ye cannot 
 act equitably toward so many, marry one only or the slaves 
 which ye shall have acquired. This will be easier that ye 
 swerve not from righteousness. And give women their 
 dowry freely; but if they voluntarily remit any part of it 
 unto you, enjoy it with satisfaction and advantage. And 
 give not unto those who are weak of understanding the sub- 
 stance which God hath appointed you to preserve for them, 
 but maintain them thereout and clothe them and speak kindly 
 unto them, and examine the orphans until they attain the age 
 of marriage, but, if ye perceive they are able to manage 
 their affairs well, deliver their substance unto them; and waste 
 it not extravagantly or hastily, because they grow up. Let 
 him that is rich abstain entirely from the orphans estate ; and 
 let him who is poor take thereof according to that which shall 
 be reasonable. And when ye deliver their substance unto 
 them call witnesses in their presence. . . . God hath thus 
 commanded you concerning your children. A male shall have 
 as much as the share of two females, but if they be females 
 only and above two in number, they shall have two third parts 
 of what the deceased shall leave, and if there be but one 
 she shall have the half, and the parents of the deceased shall 
 have each of them a sixth part of what he shall leave if he 
 have a child, but it he have no child and his parents be his 
 heirs then his mother shall have the third part. And if he 
 have brethern then his mother shall have a sixth part after 
 the legacies which he shall bequeath and his debts be paid. 
 . . . Moreover ye may claim half of what your wives shall 
 leave if they have no issue, but if they have issue, then ye 
 shall have the fourth part of what they shall leave after the 
 legacies which they shall bequeath and the debts be paid. 
 They also shall have the fourth part of what ye shall leave 
 in case ye have no issue, but if ye have issue, then they shall 
 have the eighth part of what ye shall leave after the legacies 
 which ye shall leave and the debts be paid. And if a man's 
 or woman's substance be inherited by distant relation, and he 
 
ARABIA i6i 
 
 or she have a brother or sister each of them too shall have a 
 sixth part of the estate. ... If any of your v^omen be guilty 
 of whoredom produce four witnesses from among you 
 against them, and if they bear witness against them imprison 
 them in separate apartments until death release them or God 
 affordeth them a way to escape. And if two of you commit 
 the like wickedness punish them both, but if they repent and 
 amend, let them both alone ; for God is easy to be reconciled, 
 and merciful. Verily repentance will be accepted with God, 
 from those who do evil ignorantly and then repent speedily, 
 unto them will God be turned for God is knowing and wise. 
 But no repentance shall be accepted from those who do evil 
 until the time when death presenteth itself unto one of them 
 and he saith verily, I repent now; . . . O true believer it is 
 not lawful for you to be heirs of women against their will, 
 nor to hinder them from marrying others that ye may take 
 away part of what ye have given them in dowry ; unless they 
 have been guilty of a manifest crime; but converse kindly 
 with them. ... If ye be desirous to exchange a wife for 
 another wife and ye have already given one of them a talent, 
 take not away anything therefrom. . . . Marry not women 
 whom your fathers have had to wife; for this is uncleanness 
 and an abomination and an evil way. Ye are forbidden to 
 marry your mothers and your daughters and your sisters and 
 your aunts, both on the fathers and on the mothers side, and 
 your brothers daughters and your sisters daughters, and your 
 mothers who have given you suck and your foster sisters 
 and your wives mothers and your daughters in law which 
 are under your tuition, born of your wives, . . . and the 
 wives of your sons who proceed from your loins and ye are 
 also forbidden to take to wife two sisters. Ye are also for- 
 bidden to take to wife free women who are married, except 
 those women whom your right hand shall possess as slaves. 
 . . . Whoso among you hath not means sufficient that he 
 may marry free women who are believers, let him marry with 
 such of your maid servants whom your right hands possess 
 as are true believers. . . . Serve God and associate no crea- 
 ture with Him, and show kindness unto parents, and relatives 
 
i62 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and orphans and the poor, and your neighbor who is kin to 
 you, and also your neighbor who is a stranger, and your 
 familiar companion and the traveller and the captives whom 
 your right hand shall possess."^ 
 
 Husbands were allowed to divorce their wives at will, the 
 only restrictions being as to the time of putting them away, 
 which could not be during pregnancy. "And speak unto the 
 believing women that they restrain their eyes, and preserve 
 their modesty and discover not their ornaments, except what 
 necessarily appeareth thereof, and let them throw their veils 
 over their bosoms and not show their ornaments unless to 
 their husbands or their fathers or their husbands fathers or 
 their sons or their husbands sons or their brothers or their 
 brothers sons or their sisters sons or their women or the 
 captives which their right hands possess, or unto such men 
 as attend them and have no need of women or unto children 
 who distinguish not the nakedness of women." 
 
 O true believers enter not any houses besides your own 
 houses until ye have asked leave and have saluted the family 
 thereof . . . and if ye find no person in the houses, yet do 
 not enter them until leave be granted you, and if it be said 
 unto you return back, do ye return back.^ 
 
 The criminal code is not voluminous. The Mosaic lex 
 talionis is repeated with leave to remit on payments of alms. 
 "It is not lawful for a believer to kill a believer unless it hap- 
 pen by mistake, and whoso killeth a believer by mistake the 
 penalty shall be the freeing of a believer from slavery and a 
 fine to be paid to the family of the deceased unless they remit 
 it as alms; and if the slain person be of a people at enmity 
 with you and be a true believer, the penalty shall be the free- 
 ing of a believer, and if he be of a people in confederacy 
 with you, a fine to be paid to his family, and the freeing of a 
 believer, and he who findeth not wherewith to do this shall 
 fast two months consecutively, as a penance enjoined from 
 God. ... But whoso killeth a believer designedly his re- 
 
 ^ Id. 'Ch. 4, entitled Women. 
 ^ Id. Ch. 24, p. 265. 
 
ARABIA 163 
 
 ward shall be hell, he shall remain there forever."^ "If a 
 man or woman steal cut off his hand." 
 
 'The whore and the whoremonger shall ye scourge with 
 an hundred stripes. And let no compassion toward them 
 prevent you from executing the judgment of God. . . . The 
 whoremonger shall not marry any other than a harlot or an 
 idolatress. And a harlot shall no man take in marriage ex- 
 cept a whoremonger or an idolater; and this kind of mar- 
 riage is forbidden the true believers. But as .to those who 
 accuse women of reputation of whoredom and produce not 
 four witnesses of the fact, scourge them with fourscore 
 stripes and receive not their testimony forever, for such are 
 infamous prevaricators, excepting those who shall afterwards 
 repent and amend, for unto such will God be gracious and 
 merciful. They who shall accuse their wives of adultery and 
 shall have no witnesses thereof besides themselves; the testi- 
 mony which shall be required of one of them shall be that 
 he swear four times by God that he speaketh the truth; and 
 the fifth time that he imprecate the curse of God on him if 
 he be a liar. And it shall avert the punishment from the 
 wife, if she swear four times by God that he is a liar, and if 
 the fifth time she imprecate the wrath of God on her if he 
 speaketh the truth. ^^ 
 
 ''Kill not your children for fear of being brought to want, 
 we will provide for them and for you ; verily the killing them 
 is a great sin. Draw not near unto fornication for it is 
 wickedness and an evil way. Neither slay the soul which God 
 hath forbidden you to slay unless for a just cause" (apostasy, 
 adultery or murder) "and whosoever shall be slain unjustly 
 we have given his heir power to demand satisfaction, but let 
 him not exceed the bounds of moderation in putting to death 
 the murderer in too cruel a manner, or by revenging his 
 friend's blood on any other than the person who killed him, 
 since he is assisted by this law, and meddle not with the sub- 
 stance of the orphan, unless it be to improve it until he 
 attain his age of strength, and perform your covenant, for 
 
 ' Id. Ch. 5, p. 78. 
 
 ^'Id. Ch. 24, entitled Light. 
 
i64 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the performance of your covenant shall be inquired into here- 
 after. And give full measure where you measure aught, and 
 weigh with a just balance. This will be better and more 
 easy for determining every man's due. . . . Walk not proudly 
 in the land for thou canst not cleave the earth neither shalt 
 thou equal the mountains in stature. All this is evil and 
 abominable in the sight of thy Lord."^^ 
 
 ''O true believers let not men laugh other men to scorn who 
 peradventure may be better than themselves; neither let wo- 
 men laugh other women to scorn who possibly may be better 
 than themselves. Neither defame one another, nor call one 
 another by approbrious appellations. An ill name is to be 
 charged with wickedness after having embraced the faith, and 
 whoso repenteth not they will be the unjust doers. O true 
 believers, carefully avoid entertaining a suspicion of another, 
 for some suspicions are a crime. Inquire not too curiously 
 into another man's failings, neither let the one of you speak 
 ill of another in his absence."^^ 
 
 ''Whatever things are given you they are the provisions of 
 the present life; but the reward which is with God is better 
 and more durable, for those who believe and put their trust 
 in their Lord and who avoid heinous and filthy crimes and 
 when they are angry forgive, and who hearken unto their 
 Lord and are constant at prayer, and whose affairs are di- 
 rected by consultation among themselves, and who give alms 
 out of what we have bestowed on them, and who when an 
 injury is done them, avenge themselves (and the retaliation 
 of evil ought to be an evil proportionate thereto), but he who 
 forgiveth and is reconciled unto his enemy shall receive his 
 reward from God, for he loveth not the unjust doers. "^^ 
 
 ''Thy Lord hath commanded that ye worship none besides 
 him, and that ye show kindness unto your parents, whether 
 the one of them or both of them attain to old age with thee. 
 Wherefore say not unto them. Fie on you; neither reproach 
 them, but speak respectfully unto them, and submit to behave 
 
 "/rf. Ch. 17, entitled The Night Journey. 
 ^^ Id. Ch. 49, entitled The Inner Apartments. 
 ^^Id. Ch. 42, entitled Consultation. 
 
ARABIA 165 
 
 humbly towards them out of tender affection and say O 
 Lord have mercy on them both as they nursed me when I 
 was Httle. . . . And give unto him who is of kin to you 
 his due and also unto the poor and the traveller, and waste 
 not your substance profusely for the profuse are brethern of 
 the devils."!^ 
 
 "God will not punish you for an inconsiderate word in 
 your oaths, but he will punish you for what ye solemnly 
 swear with deliberation. And the expiation of such an oath 
 shall be the feeding of ten poor men with such moderate food 
 as ye feed your own families withal, or to clothe them, or to 
 free the neck of a true believer from captivity, but he who 
 shall not find wherewith to perform one of these three things 
 shall fast three days. This is the expiation of your oaths 
 when ye swear inadvertently. Therefore keep your oaths. 
 Thus God declareth unto you his signs that ye may give 
 thanks. O true believers surely wine and lots and images 
 and divining arrows are an abomination of the work of 
 Satan; therefore avoid them that ye may prosper. Satan 
 seeketh to sow dissension and hatred among you by means 
 of wine and lots and to divert you from remembering God 
 and prayer, will ye not therefore abstain from them?"^^ 
 
 "Say I find not in that which hath been revealed unto me 
 anything forbidden unto the eater that he eat it not, except 
 it be that which dieth of itself or blood poured forth, or 
 swine flesh for this is an abomination, or that which is pro- 
 fane, having been slain in the name of some other than of 
 God. But whoso shall be compelled by necessity to eat of 
 these things, not lusting nor wilfully transgressing, verily the 
 Lord will be gracious unto him and merciful."^^ 
 
 "They who devour usury shall not arise from the dead but 
 as he ariseth whom Satan hath infected by a touch, this shall 
 happen to them because they say, Truly selling is but as usury 
 and yet God hath permitted selling and forbidden usury. He 
 therefore who, when there cometh unto him an admonition 
 from his Lord, abstaineth from usury for the future, shall 
 
 ''Id. Ch. 17. ''Id. Ch. 5. ''Id. Ch. 6. 
 
:i66 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 have what is past forgiven him, and his affair belongeth unto 
 God. But whoever returneth to usury, they shall be the com- 
 panions of hell fire, they shall continue therein forever."^^ 
 
 ''O true believers, when you bind yourselves one to the 
 other in a debt for a certain time, write it down, and let a 
 writer write between you according to justice, and let not 
 the writer refuse writing, according to what God hath taught 
 him, but let him write and let him who oweth the debt dictate, 
 and let him fear God his Lord and not diminish aught thereof. 
 But if he who oweth the debt be foolish or weak or be not 
 able to dictate himself, let his agent dictate according to equity 
 and call to witness two witnesses of your neighboring men; 
 but if there be not two men, let there be a man and two 
 women of those whom ye shall choose for witnesses, if one 
 of these women should mistake the other will cause her to 
 recollect, and the witnesses shall not refuse whensoever they 
 shall be called. And disdain not to write it down, be it a 
 large debt or be it a small one, until its time of payment; 
 this will be more just in the sight of God, and more right for 
 bearing witness and more easy that ye may not doubt. But 
 if it be a present bargain which ye transact between your- 
 selves, it shall be in you if ye write it not down. And take 
 witnesses when ye sell one to the other, and let no harm 
 be done to the writer nor to the witnesses."^^ 
 
 The true believers were commanded to wash before prayers 
 and if where no water could be had, to rub faces and hands 
 with fine clean sand. 
 
 ''O true believers observe justice when ye bear witness be- 
 fore God, although it be against yourselves or your parents or 
 relations, whether the party be rich or whether he be poor, 
 for God is more worthy than them both ; therefore follow not 
 your own lust in bearing testimony so that ye swerve from 
 justice. And whether ye wrest your evidence or decline giv- 
 ing it God is well acquainted with that which ye do."^^ 
 
 "God hath appointed the Caaba the holy house an establish- 
 ment for mankind; and hath ordained the sacred month and 
 
 "/rf. Ch. 2. ""Id. Ch. 2. "M Ch. 4. 
 
ARABIA 167 
 
 the offering and the ornaments hung thereon."-^ "But they 
 who shall disbelieve and obstruct the way of God and hinder 
 men from visiting the holy temple of Mecca which we have 
 appointed for a place of worship unto all men; the inhabi- 
 tant thereof and the stranger have an equal right to visit it; 
 and whosoever shall seek impiously to profane it we will 
 cause him to taste a grievous torment. Call to mind when 
 we ga-ve the site of the Caaba for an abode unto Abraham, 
 saying, Do not associate anything with me and cleanse my 
 house from those who compass it and who stand up and who 
 bow down to worship. And proclaim unto the people a 
 solemn pilgrimage, let them come unto thee on foot and on 
 every lean camel arriving from every distant road, that they 
 may be witnesses of the advantages that accrue to them from 
 visiting the holy place, and may commemorate the name of 
 God on the appointed days in gratitude for the brute cattle 
 he hath bestowed on them."^^ 
 
 The foregoing passages cover substantially all of Moham- 
 med's law-giving. The substance of some of these commands 
 is repeated in other places, but the balance of the Koran is 
 filled w^ith sermons and narratives taken fropi the Bible, and 
 frequent and oft repeated denunciations of the infidels. This 
 meager code did not suffice for the vast empire built up by his 
 successors. To supplement it recourse was had to decisions 
 made by Mohammed, to analogies, traditions and customs 
 constituting the Sunna. Numberless commentators elucidated 
 the text of the Koran, and the decisions of Mohammed were 
 collected and published. Where all these failed to furnish a 
 rule the early Caliphs exercised their own judgment and, as 
 must always happen everywhere in the absence of an estab- 
 lished rule or precedent, the opinion of the judge in the 
 particular case necessarily stands for law. Throughout all 
 Mohammedan countries, however, the Koran was ever looked 
 to for the spirit of the whole law, and its commands admitted 
 of no change or modification by any authority whatever. A 
 lengthy treatise on Mohammedan jurisprudence, that of Ibn 
 
 ''Id. Ch. 5. 
 
 "/(/. Ch. 23, entitled The True Believer. 
 
t68 evolution of GOVERNMENTS AND LAWS 
 
 Hanbal, has the following principal heads. Of Purification 
 (ablution, purification of women, circumcision, etc.). Of 
 Prayer, of Funerals, of Tithe and Almsgiving, of the legal 
 Fasts, of the Pilgrimage to Mecca, of Commercial and other 
 transactions, of Inheritance, of marriage and divorce, of the 
 Faith, of Crimes and Misdemeanors, of Justice, of the Ima- 
 mate or spiritual power, and of the Caliphate or temporal 
 power. 
 
 An American lawyer would be more likely to think he had 
 found a religious commentary than a law book, but with 
 Mohammedans, law and gospel were one. 
 
 Mohammed's power was derived from the belief in his 
 divine commission. The scope and limitations of his authority 
 were fixed by revelations of the Koran, from time to time, 
 as the exigencies of state required. In his life he extended 
 his power over Arabia and sought submission from neighbor- 
 ing people, but died when preparing to invade Syria. His 
 successors rapidly extended their power over Egypt, Syria 
 and thence over the north of Africa and all Asia Minor. The 
 first four Caliphs were chosen by the community at Medina. 
 The revenues of the state consisted of the tithe for the poor, 
 which every Moslem was required to pay, a fifth of the spoils 
 of war, — the rest going to the warriors, — the poll tax and 
 land tax on infidels. The Caliph administered the revenues 
 according to his pleasure. The poll tax ranged from about 
 two dollars on the poor to about eight dollars on the rich. The 
 land tax was in the nature of a rent according to the character 
 of the holding. In the early days pensions were paid to the 
 faithful out of the public revenues. With the growth of the 
 empire the necessities of administration caused its division in- 
 to provinces, first ten, and on the removal of the capital from 
 Damascus to Bagdad, twelve. Each province was governed by 
 a perfect, who stood in the place of the Caliph. The central 
 administration developed into various departments, each un- 
 der the supervision of a chief. There was a ministry of 
 Finance, Bureau of State property, Exchequer Office, Min- 
 istry of War, Court of Appeal, Bureau of freedmen and 
 slaves of the Caliphs, Office of expenditure. Office of Posts, 
 
ARABIA 169 
 
 Office of Correspondence, Office of the Imperial Seal and 
 registration. All power was centered in the Caliph, who was 
 the spiritual as well as the temporal head. The ministers of 
 the various departments were responsible to him. So were 
 the prefects who stood as his representatives in the provinces. 
 
 Justice was administered by Cadis appointed by the Caliph, 
 his Vizier or the prefect. To be eligible to this appointment 
 one must be a free male Moslem, of suitable age, sound mind, 
 good morals and learned in the law. The Cadis had general 
 civil and criminal jurisdiction and of guardianships and es- 
 tates, and over mosques, schools and public buildings. To as- 
 sist him the Cadi had Notaries, Secretaries and Deputies- 
 From the decision of the Cadi an appeal might be taken to 
 the Court of Appeal, which was presided over by the Caliph in 
 person till the time of Mohtadi, after which a special judge 
 appointed for that purpose presided. In the provinces there 
 were Marshals who kept records of the birth and death of 
 descendants of the family of the Prophet. The Imams of- 
 ficiated at the Mosques. 
 
 The practical application of the Koran in the decision of 
 causes by the Cadis and the religious sentiment of the be- 
 lievers combined in calling out innumerable commentaries, 
 seeking to elucidate and make plain whatever was obscure. 
 Judges with a fixed guide for their decisions were a marked 
 improvement over despotism, notwithstanding the meager 
 rules afforded by the Koran. Under the Caliphs a new and 
 better civilization than any which had preceded it developed, 
 and the seats of learning and progress in literature, art and 
 science were within the Moslem world. As the lights grew 
 dim in the crumbling empire of Rome and Constantinople 
 they burned more brightly at Damascus and Bagdad, illumi- 
 nating the followers of Islam from India to Andalusia. 
 Though the teachings of Mohammed were not so pure and 
 exalted as those of Christ, they were coupled with more prac- 
 tical means for their observance, and on Asiatic and African 
 soil they manifested superior adaptation. In Europe they 
 never took firm root, save among the Moors in Spain and the 
 Turks in the east. 
 
I70 EVOLUTIO'N OF GOVERNMENTS AND LAWS 
 
 Though at this day it is estimated that near 175,000,000 
 people are Mohammedans, the empire of the CaHphs is in 
 scattered fragments. The Koran sanctions slavery and poly- 
 gamy and, while it forbids wine and gaming in this world, it 
 promises a sensual idlers' heaven. Its ideals are neither pure 
 nor exalted and its standard of justice is partial and deficient. 
 While apparently of great use in its time, like all other rigid 
 systems enforced by a religious sanction, it perpetuates its 
 errors and vices, and in the lapse of centuries these seem to 
 overshadow the good and render the whole an obstacle to be 
 removed to make way for something better. But so well is 
 the faith with its rewards and punishment adapted to certain 
 types of men, that neither Christianity nor Buddhism has suc- 
 ceeded in transplanting it. 
 
CHAPTER IX 
 
 India 
 
 Within the geographical limits of what we call India there 
 are, and in the earliest times of which we have any accounts 
 were, so many people, differing in race, language and social 
 condition from each other, that generalizations become ex- 
 ceedingly difficult and a connected historical statement of the 
 development of their civilization quite impossible. No single 
 race has at any known date occupied the whole territory. No 
 one language has been spoken by all the people. At this day 
 the ethnologist finds there an ample field for the study of the 
 diverse types of men. Connected histories by native writers 
 are almost wholly wanting. The material from which the 
 student must proceed to construct an account of the past is 
 fragmentary. The earliest accounts come through the sacred 
 writings of the Aryan invaders, who entered the country 
 from the northwest. The date of their advent into the Pun- 
 jab is variously estimated by scholars on data which leave a 
 very wide margin for difference of inference, with no means 
 of definitely settling the point. It seems safe to say that it 
 was more than looo B.C. and may have been thousands of 
 years earlier. These invaders found the country already 
 peopled by numerous tribes, some of whom used iron imple- 
 ments and were considerably advanced above the savage state. 
 Of the people occupying those parts of the country remote 
 from the invaders we have no accounts reaching back to so 
 early a time. 
 
 From the Vedic hymns are gathered the leading facts re- 
 lating to the movement of the Indian branch of the great 
 Aryan family from the common home in the mountain region 
 from which the Oxus and Jaxartes flowed. What causes have 
 produced the Brahmin type in India and the Persian, Median 
 and European in the west it is not our purpose to inquire, but 
 
 171 
 
172 EVOLUTIO'N OF GOVERNMENTS AND ii\WS 
 
 it may be noticed that the race is generally the dominant one 
 wherever found. The earliest songs disclose the clans in 
 Cabul north of Khyber Pass, the later ones show them to have 
 reached the Ganges. They were a very religious people and 
 placed great reliance on the aid of their gods. The Rich- 
 Veda shows the Aryans dwelling along the banks of the 
 Indus, divided into tribes, sometimes warring with each other, 
 sometimes united against the dark skinned aborigines. Each 
 father of a family was also its priest. The chief acted as 
 priest of the tribe, but at the great festivals chose some one 
 specially learned in the rites to conduct the sacrifices. Chiefs 
 were elected. Husband and wife together were rulers of the 
 house, and the marriage relation was held sacred. Caste and 
 the burning of widows were unknown. Before entering India 
 through the Kyber Pass and while still in the mountainous 
 region near Cabul, the Aryans had already discovered or 
 learned many of the arts of civilization. They had black- 
 smiths, coppersmiths , goldsmiths, carpenters and barbers. 
 They fought in chariots and with horses,, they reared cattle, 
 tilled the soil, spun and wove. When and where the art of 
 writing was learned by them is a point on which scholars differ 
 widely. While it is agreed on all hands that the hymns of 
 the Rig Veda are of very ancient composition, definite dates 
 have not been fixed, and it is claimed that they were not re- 
 duced to writing for many centuries after their original com- 
 position. 
 
 This strong, vigorous and highly religious race of people 
 descended into the valley of the Indus, which they found al- 
 ready occupied by inferior people. Most of the aboriginal 
 tribes found by the Aryans were of a negroid or mongolian 
 type, not more advanced in culture than the American In- 
 dians at the time of the discovery of the western continent. 
 There were others mentioned in Sanskrit literature as wealthy 
 and possessed of castles and forts. They adorned their dead 
 with raiment and ornaments of bronze, copper and gold. 
 There are ample evidences of the existence in early times of 
 rude tribes, who used stone implements, but just at what stage 
 of development all the native people had arrived at the time 
 
INDIA 173 
 
 of the advent of the Aryans, it is impossible to state. That 
 the invaders were superior as warriors, as well as in culture, 
 is evident from the extension of their possessions, which 
 spread from the valley of the Indus to that of the Ganges and 
 ultimately extended over most of the peninsula. The con- 
 quests of the Aryans however, were not merely the extension 
 of military power and governmental control over the native 
 population, but the encroachments of a superior race, which 
 either drove out or subjugated the inferior. Race and re- 
 ligious superiority were asserted rather than mere sovereignty, 
 and the invaders came to make the conquered country their 
 home. 
 
 The non-Aryan races are said to belong to three principal 
 stocks, the Tibeto-Burman, the Kolarian and Dravidian. The 
 language of the Tibeto-Burman indicates Mongolian and 
 Chinese origin, and it is inferred that they crossed into the 
 country they now inhabit along the skirts of the Himalayas 
 from Central Asia. The Kolarians are also supposed to have 
 entered India from the north and are now found mainly in 
 the north and along the northern edge of the southern table- 
 land. At the present time they appear as scattered tribes, 
 whose common origin is proved by similarity of language 
 and appearance rather than any social connection or tradition 
 of common origin. The Dravidians form a compact mass 
 in southern India, and the dialects classed as Dravidian are 
 spoken by nearly 50,000,000 people. Aside from these prin- 
 cipal stocks, the presence of Africans and Arabs in India in 
 very early times is well established, and their blood has been 
 preserved and mixed with the other stocks to a considerable 
 degree. At all periods in its history India seems to have at- 
 tracted to it people from the north and west, not only for 
 trade, but also for permanent settlement and conquest. 
 
 Chaldeans, Assyrians and Egyptians as well as Chinese 
 have known of and traded with the people of India from very 
 early times, yet very little can be learned of the early condi- 
 tions of the people from accounts derived through these 
 sources. It is impossible to trace the governmental and 
 social state of India through the historical period and ignore 
 
174 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the rise and fall of religion. Nowhere else has the effect 
 of religious teaching on social life been greater or more 
 enduring. 
 
 The proud Aryan invaders, whose deeds are related in the 
 Vedic verses, asserted and maintained, not only their own race 
 superiority over the people they subdued, but also the superi- 
 ority of their gods over the weaker ones of the aborigines. 
 In the early period of the Aryan invasion, when the art of 
 writing was unknown, the battle hymns and sacrificial cere- 
 monials were passed down by oral instruction from father to 
 son. This led to the growth of a priestly order, specially 
 versed in all that pertained to the sacred rituals. Great faith 
 was put in the efificiency of battle hymns that had been chanted 
 and prayers that had been offered before successful battles. 
 By degrees the number of prayers and hymns increased and 
 the priestly order multiplied, till the great ceremonies re- 
 quired superior priests to direct and, under them, those who 
 prepared the sacrificial ground, dressed the altars, slew the 
 victims and poured the libations, those who chanted the Vedic 
 hymns and those who recited other parts of the service. In 
 the course of time a priestly order was thus developed. As 
 the conquests of the invaders were extended by continual 
 wars against the primitive people, the leaders of the army, 
 who were rewarded with such possessions as enabled them to 
 devote all their time to the service of the king, became the 
 military class. The common people who settled down and 
 tilled the soil became the Vaisyas, and beneath them were the 
 conquered people who were forced to serve the invaders. In 
 this manner the four fundamental castes, which, with their 
 numerous divisions, subdivisions and new classifications, have 
 given to Indian society its peculiar structure, were founded. 
 The Brahmans have always asserted their superiority over all, 
 but this has not always been conceded by the military caste, 
 and the relative power and influence of these leading castes 
 have fluctuated with the varying conditions due to the rise 
 and fall of dynasties and the strength or weakness of princes 
 and other causes. 
 
 The Vaisyas were the lowest caste of the Aryan stock, yet 
 
INDIA 175 
 
 were ranked as belonging to the "twice born" and were all 
 allowed to be present at the great national sacrifices. The 
 lowest were the once born Sudras, the Dasas of the Veda, 
 whose lives were spared by the conquerors in order that they 
 might Hve as a servile class. These were not allowed to at- 
 tend the great sacrifices and feasts. It was their lot to per- 
 form the hardest and meanest labor, and from their low 
 estate they could never rise. The system of castes did not 
 fully develop until after the Aryans were well settled along 
 the Ganges. It did not obtain in the early settlements west 
 of the Indus. In the Middle Land, from Delhi to Benares, 
 the Brahmans became a compact body which assumed to dic- 
 tate to all classes in all matters relating to religion, philosophy 
 and law. They denounced all Aryans who did not submit 
 to their pretensions as lapsed and outcast tribes. The re- 
 ligious thought of the people found its expression in the 
 Vedas, which were ultimately compiled and reduced to writ- 
 ing. The Brahmans however were not content with the en- 
 forcement of religious rites and the preservation of the 
 ancient faith. They sought to secure their own position and 
 the social system which had been developed by codes of laws. 
 The earliest of these are the Dharma Sastras, which exhibit 
 the state of the Hindu law at an early date, not fixed with 
 any degree of certainty. They do not purport to be new 
 enactments, but simply compilations of existing law. They 
 recognize and enforce the division into castes in the order 
 stated. Later than this came the great code of Manu which 
 the Brahmans ascribe to the first Aryan man thirty millions 
 of years ago. This was a compilation of the laws which had 
 been established in that portion of India where the Brahman- 
 ical order exercised the greatest influence. This so-called code 
 has wielded a more powerful influence and over a far wider 
 field than any native dynasty ever established in India. So 
 strong a hold did the system which it expressed gain on the 
 people of India that its leading tenets have maintained their 
 authority through all the mutations of race and empire, even 
 to the present day. Later than this came a second great code 
 that of Yajnavalka, compiled after the establishment of Bud- 
 
176 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 dhism. It is a reiteration of the laws of Manu with some 
 additions relating to legal forms and other matters. 
 
 These codes found their sanction in the Vedas, which had 
 attained the authority of inspired writings, and the rules de- 
 clared for the government of all classes of people were mainly 
 extracted from the Vedic Sanhitas. While the purpose to 
 exalt the Brahman caste is evident, it was not the gross super- 
 iority which comes merely with the possession of wealth and 
 political power, but a far better and more enduring superiority 
 was sought and in fact attained. The Brahmans were made 
 the custodians not merely of the religious ceremonials but of 
 learning as well. Purity of morals and of blood were en- 
 joined, and the leading idea at all times seems to have been 
 to maintain a genuine intellectual and physical superiority over 
 the native races and also over the inferior Aryan castes. The 
 three original Aryan castes Brahmans, Cshattriyas and Vaisyas 
 all observed the same domestic rites at birth, first feeding of 
 rice, investure with the sacred thread, marriage, funerals, etc. 
 The most important of these observances was the upanayana 
 or conducting the boy to his teacher. Connected with this 
 was the ceremony of investing with the sacred cord, which 
 was worn over the left shoulder and under the right arm, 
 varying in material according to the class of the wearer. 
 This was the preliminary to his initiation into the study of 
 the Veda, the management of the sacred fire, the knowledge 
 of the rites of purification, and the invocation to the sun, 
 which he must repeat morning and evening. 
 
 The steps by which the principles of Brahmanical law were 
 extended and enforced, throughout not only Hindostan but 
 farther India as well, cannot be traced historically, but certain 
 it is that the code of Manu, modified by and adapted to local 
 conditions and customs, forms the basis of the social or- 
 ganization of the many races of India. While the system of 
 castes is often spoken of as the most rigid and inflexible in- 
 stitution ever established, it seems to have been so moulded as 
 to adapt itself to all the varying conditions of that most 
 varied aggregation of people, and in matters of belief the 
 Indian pantheon appears at one time or another to have had 
 
INDIA 177 
 
 a place for every god and religious ceremonial, a form suited 
 to the prejudice of every clan. 
 
 The Brahmanical codes were never dependent for their 
 enforcement on any particular ruler or ordinary governmental 
 agency. Their principles were inculcated into all classes by 
 the teachers, who acted also as judges in controversies aris- 
 ing among the people. 
 
 The first powerful attack on the influence of the Brahmans 
 resulted from the teachings of Gautama in the sixth century 
 B.C. He was the son of the chief of the Sakyas, an Aryan 
 clan dwelling about one hundred miles north from Benares, 
 and was himself of the Cshatriya caste. Having abandoned 
 all the privileges of his station and formulated his system of 
 religion, he proceeded to teach it as a mendicant, begging 
 his subsistence wherever he went. He sought to establish no 
 new government or organization of society, but to teach men 
 the way to permanent peace and happiness, to rest in Nirvana. 
 He taught the Brahman doctrine of the transmigration of 
 the soul, and that existence must be endured till the soul be- 
 came pure and free from all evil passions and desires. The 
 purity and loftiness of his doctrines are fairly expressed in 
 the following extract from the Buddhist Scriptures. Answer- 
 mg the question as to what he considered the greatest blessing 
 he said, "i. To serve wise men and not fools, to give honor 
 to whom honor is due, this is the greatest blessing. 2. To 
 dwell in a pleasant land, to have done good deeds in a former 
 birth, to have right desires for one's self, this is the greatest 
 blessing. 3. Much insight and much education, a complete 
 training and pleasant speech, this is the greatest blessing. 
 4. To succor father and mother, to cherish wife and child, to 
 follow a peaceful calling, this is the greatest blessing. 5. To 
 give alms and live righteously, to help one's relatives and do 
 blameless deeds, this is the greatest blessing. 6. To cease 
 and abstain from sin, to eschew strong drink, not to be 
 weary in well doing, this is the greatest blessing. 7. Rever- 
 ence and lowliness, contentment and gratitude, the regular 
 hearing of the law, this is the greatest blessing. 8. To be 
 long suffering and meek, to associate with members of the 
 
178 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Sangha, religious talk at due seasons, this is the greatest 
 blessing. 9. Temperance and chastity, a conviction of the 
 four great truths, the hope of Nirvana, this is the greatest 
 blessing. 10. A mind unshaken by the things of the world, 
 without anguish or passion and secure, this is the greatest 
 blessing. 11. They that act like this are invincible on every 
 side, on every side they walk in safety and theirs is the great- 
 est blessing." 
 
 The teachings of Gautama, though not directly attacking 
 the institution of caste, left no place for it. Nirvana was 
 open to the Sudra as well as the Brahmen. The same course 
 of conduct was enjoined on all and the vanity of all earthly 
 possessions and power was a leading theme in his teachings. 
 He organized a society called the Sangha, whose members 
 forsook worldly callings and taught his doctrines. The 
 Buddhist monasteries, afterward so numerous wherever his 
 religion became established, are the successors of this society, 
 though the practices and doctrines of the early time have 
 been much corrupted. The new religion was spreading among 
 the tribes of Northern India at the time of Alexander's in- 
 vasion 327 B.C. but had not become general. 
 
 From the Greek historians we gain the first historical ac- 
 counts of India as seen through the eyes of Europeans. The 
 impression was of a country of vast wealth and numerous 
 people. The most potent monarch Alexander, encountered 
 was Porus, whose dominions appear to have been in the 
 Eastern part of the Punjab. His force is stated at 30,000 
 infantry, 4,000 cavalry, 200 elephants and 300 war chariots, 
 though the combined forces of the Oxydracae and Malli which 
 Alexander afterward encountered are said to have amounted 
 to 90,000. Alexander's conquests extended only into the 
 Punjab and did not prove permanent. Following the Greek 
 invasion Chandra Gupta founded his empire in what is now 
 the province of Behar with his capital at Patna. Seleucus, 
 who succeeded on the death of Alexandria 323 B.C. to the 
 Empire of the East, was unable to maintain his authority in 
 India and finally concluded an alliance with Chandra Gupta, 
 giving him his daughter in marriage and sending Megasthenes 
 
INDIA 179 
 
 as an ambassador to reside at his court. Megasthenes wrote 
 a full account of the condition of society in India at that time, 
 and his account of the system of castes corresponds in the 
 main with that obtained later through Indian sources. He 
 divides the people into seven classes, viz. philosophers, hus- 
 bandmen, shepherds, artisans, soldiers, inspectors and coun- 
 sellors of the king. 
 
 He commented favorably on the absence of slavery, the 
 chastity of the women and the courage of the men. Each 
 village was a little republic, owning the land by a common 
 title, though tilling in separate tracts. The people were truth- 
 ful, sober and industrious, living peaceably in their com- 
 munities. India he says was then divided into ii8 kingdoms. 
 General descriptions of a country so vast as India must then 
 have been very imperfect. Though the disposition of the 
 people was peaceable, wars between the petty kingdoms oc- 
 curred, resulting in the rise and fall of rulers and the ag- 
 grandisement of one at the expense of another. 
 
 The kingdom founded by Chandra Gupta was extended 
 under his grandson Asoka over the whole of Northern India. 
 After a bloody early career, in which among the deeds 
 charged to him is that of ordering the slaughter of all his 
 brothers but one, in the year 257 B.C. he became converted 
 to the Buddhist faith. He was as vigorous in inculcating the 
 new religion as he had been in war, and Buddhist monasteries 
 multiplied all over his dominions. He sent ambassadors to 
 Egypt, Cyrene, Syria and Macedonia. At his death, after a 
 long and prosperous reign, his empire fell to pieces. One 
 of the prominent features of Asoka's reign was the great 
 council of Buddhists, held at his call 244 B.C., at which the 
 canons of the faith were discussed and promulgated in what 
 is termed by northern Buddhists the Lesser Vehicle, in con- 
 tradistinction to the Greater Vehicle, a more voluminous com- 
 pilation, engrafting many new practices and articles of faith, 
 w^hich was settled by the fourth and last great council held 
 in the reign of Kanishka, who ruled northwestern India, as 
 well as a considerable district lying to the north and west of 
 it. The Greater Vehicle became the law for the Thibetan and 
 Chinese followers of Buddha. 
 
l8o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 About 126 B.C. the Tartars are said to have driven the 
 Greeks from Bactria and their settlements from the Punjab. 
 The empire of Kanishka is styled Scythic, and there seems 
 to have been at that period an extensive movement of Scyth- 
 ians into India. They did not meet with a peaceful reception, 
 and the princes and warriors who successfully resisted their 
 encroachments are celebrated by Hindu writers. They ap- 
 pear however to have maintained a part of their conquests 
 and the modern Jats and some tribes of Rajputs are said to 
 be of Scythic stock. 
 
 Later came invasions of Huns. To trace the varying for- 
 tunes of the natives and their invading enemies is a great 
 and exceedingly difficult task, not contemplated in this work. 
 Recurring periods of bloodshed and the desolations of war 
 interrupted the calm devotions of the faithful followers of 
 the teacher of peace and good works. Notwithstanding the 
 inculcation of the injunction not to kill, the people of India 
 stood their ground and on the whole seem to have had rather 
 the better of the struggle with the ruder people from the 
 northwest. Aryan and non-Aryan people alike were engaged 
 in opposing the invaders, as well as in warring with each 
 other from time to time. In about 630 a Chinese pilgrim 
 found both the northern and southern sects of Buddhists in 
 India and listened to their debates at various places. 
 
 Brahmanism continued in spite of the growth of the new 
 religion. It was doubtless materially aided by the frequently 
 recurring wars, when fierce war gods, who were given places 
 in the pantheon, were deemed more serviceable than the pas- 
 sive virtues of Buddha. About the seventh and eighth cen- 
 turies there seems to have been a revival of Brahmanism, and, 
 at the time of the Mohammedan invasion, Buddhism had 
 nearly disappeared from India. 
 
 The first Mohammedan invasion was in 664, only thirty- 
 two years after the death of the Prophet, but it was without 
 permanent results. In 711 Sind was invaded and subjected to 
 the rule of Waldi I, Caliph of Damascus. In 750 the Moham- 
 medans were driven out. No further invasion is mentioned 
 until 977, when the Punjab was made tributary to Sabuktagin 
 
INDIA i8i 
 
 Sultan of Ghazni. His son Mahmud invaded India repeatedly 
 with his armies and fought successfully great battles, as the 
 result of which his authority was extended as far as the 
 Ganges. Khusru, a son of the last of the Ghazni dynasty, 
 having been driven out by the Afghans of Ghor, founded at 
 Lahore a short-lived Mohammedan dynasty, but the Afghan 
 Mussulman waged successful war against his son and took 
 him prisoner. Under Muhammed Ghori the new empire was 
 extended by successive conquests over the entire northern 
 plain as far as the Brahmaputra. At the death of Muham- 
 med the viceroy, through whom he had governed India, pro- 
 claimed himself sultan at Delhi. In 1294 Allah-ud-din Khelji 
 raised himself to the throne of Delhi. He extended his do- 
 minions to the south and his armies penetrated to the extreme 
 south of the Peninsula. The descendants of Allah-ud-din 
 occupied the throne but five years when in 1321 Gheyas-ud- 
 din Tuglak, said to have been a Turk, established a dynasty 
 which lasted till the invasion of Timur, seventy years later. 
 
 The period of the rule of this dynasty was one of magnifi- 
 cence at court, of war and tyranny. Revolts against the 
 sultan in various quarters prepared the way for Timur, who 
 invaded India in 1398 and gained most unenviable fame for 
 his cruel slaughter and enslavement of the people. The city 
 of Delhi and many other towns were sacked, and the people 
 of all ages and sexes indiscriminately slaughtered. Great 
 numbers of captives were taken back to his capital at Samar- 
 kand as slaves. He established no permanent government 
 and his invasion was followed by a period of small states 
 without any great authority. 
 
 In 1525 Baber, the fifth in descent from Timur, by invita- 
 tion of the governor of the Punjab, invaded India and 
 founded the great Mughal empire, which however was not 
 generally recognized during his life, but his actual authority 
 extended over only a limited and not clearly defined territory. 
 His son Humayun was driven out of India by Sher Shah, a 
 native of Bengal, who established an extensive though brief 
 authority over Hindostan. Akbar, the son of Humayun, ap- 
 pears the real founder of the Mughal empire, which lasted 
 
i82 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 till finally overthrown by the British. Humayim died in 1556 
 when Akbar was fourteen years old. 
 
 Under the guardianship of Bairam Kahn he first established 
 his authority in the Punjab and on the upper Ganges about 
 Delhi and Agra. From this basis he extended his dominion 
 over the greater part of India. He was not only a great con- 
 queror but a noted civil governor. He reformed the system 
 of taxation in such manner as to make the burden fall more 
 equitably than before and at the same time produce ample 
 revenue. He established many public schools, was tolerant to 
 all religions, and it is said that though raised a Mohammedan 
 he had no fixed religious belief. In his military system he 
 employed native Rajputs on equal terms with his Mughals. 
 His favorite wife was a Rajput princess. He was superior 
 to all his predecessors in his understanding of the character 
 and prejudices of the people over whom he ruled and he suc- 
 cessfully adapted his system to the vast mixed population of 
 his dominions. Under his grandson Shah Jahan the empire 
 reached its period of greatest magnificence of which many 
 noted monuments remain. 
 
 The Taj Mahal at Agra, erected as the mausoleum of his 
 favorite wife, is regarded as a model of beauty and purity in 
 architecture never surpassed. Aurangzeb succeeded his 
 father. Shah Jahan, in 1658 and before his death extended 
 the empire over the Deccan and to the extreme south of the 
 peninsula. While his territory was extended, the fibre of his 
 government seems to have weakened, and after his death the 
 empire fell in pieces never again to be reconstructed. Petty 
 sovereigns divided the dominion and exercised authority over 
 its various districts. In 1500 the first permanent lodgement of 
 Europeans in Hindostan was effected by the Portuguese on 
 the Malabar coast. For a century thereafter they enjoyed a 
 monopoly of oriental trade. The Dutch were the first to 
 break this monopoly and were soon followed by the English 
 and French, whose struggle for supremacy will not now be 
 considered. 
 
 While it seems altogether natural and proper to speak of 
 India as a single country and to consider its history as an 
 
IXDIA 183 
 
 entirety, the foregoing brief summary of some' leading events 
 omits mention of princes without number, who from time to 
 time ruled over more or less of the country. From the earliest 
 times the wealth of India has been proverbial, and it has at- 
 tracted alike the traders and the armed invaders. The latter 
 have been of two classes, those who came merely to add ter- 
 ritory to a foreign empire, and those who came to gain set- 
 tlements in the country. The Aryan movement is the earliest 
 of which records have been preserved, but they found the 
 country already peopled. When and whence those early peo- 
 ple came upon the scene cannot be told. 
 
 While the original Aryan invaders do not appear to have 
 ever established a government over the whole country or even 
 over the greater portion of it, they did impose their religion, 
 their laws and customs in nearly all parts of the peninsula. 
 Some of the early tribes, however, never accepted their teach- 
 ings and their religion has been corrupted with local super- 
 stitions to such an extent in many places as hardly to be 
 recognizable. Nor are their laws governing marriage, in- 
 heritance and property rights in general uniformly followed. 
 On the contrary local superstitions and customs have pro- 
 duced infinite variety of worship, ceremony and local law. 
 
 The practice of burning widows with the dead bodies of 
 their husbands, called suttee, is chargeable to the Brahmans 
 and was followed by people of the highest classes. It was 
 esteemed a virtuous act for the widow to follow her husband 
 and the meaning of the word suttee or sati is a virtuous wife. 
 Though this custom is an ancient one it is not sanctioned by 
 the Vedas or the code of Manu. It was practiced by other 
 ancient people, notably the Scyths. Some of the Kandh clans 
 practiced human sacrifice in most cruel and revolting manner 
 until very recent times. 
 
 The institution of caste has shown the most marked staying 
 qualities, and the original simple divisions of the Aryan 
 invaders into four castes has been followed by more than a 
 thousand different divisions, partaking of the nature if not 
 strictly designated as castes. Very few of the people of all 
 India are wholly exempt from caste distinctions. Some of 
 
i84 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the wild hill tribes are said to have no castes, and, of course, 
 Europeans and other new comers into the country cannot be 
 said to have castes. They are nevertheless classed by them- 
 selves by the Hindus, and the system of classification is so 
 deeply rooted that, as to the great mass of the people of India, 
 all kinds of people are assigned to some class, and the observ- 
 ance of their own castes by the Hindus operates to a great 
 extent in fixing a caste for all newcomers. The main excep- 
 tion to the prevalence of strict castes is among the Moham- 
 medan population. As they look to the Koran for their law 
 and as Mohammed made no distinction of race, color or con- 
 dition among his followers, the true believer has no .basis for 
 caste distinctions. There are, however, especially among the 
 Mongolian and negroid races, many nominal Mohammedans, 
 who adopt many Hindu customs and observe caste restrictions. 
 Of the whole population nearly three-fourths are classed as 
 Hindus in religion, and nearly three-fourths of the remainder 
 as Mohammedans. The natural tendency for those engaged 
 in a particular profession or business to associate and com- 
 bine, because of similar tastes and common interests, has 
 supplemented the policy of the early Aryans, which seems to 
 have aimed mainly at the maintenance of the supremacy of 
 the conquering race and of the rank of the Brahmanical order. 
 Neither in religion nor in law has a uniform system ever 
 prevailed over the whole country. Different modifications of 
 the pantheon of gods have been made to meet the demands of 
 different tribes, till under the general head of Hindus are 
 included all grades and shades of faith and ceremony, from 
 those of the high minded Brahman, who seeks by rigid fast- 
 ing, meditation and prayer to divest his soul of all evil pas- 
 sions and worldly desires, in order that he may find rest with 
 the divine essence, to the Worshippers of the destroyer, who 
 seek by human sacrifices to avert the wrath of wicked gods. 
 The leading features of the caste system seem to be adapted 
 to all races and conditions. Not only do those belonging to 
 the higher castes insist on its rigid maintenance, but those 
 belonging to the inferior ones find that it accords with their 
 wishes and incHnations. The old saying that ''birds of a 
 
INDIA 185 
 
 feather flock together" expresses the natural tendency of those 
 occupying similar social position or engaged in similar pur- 
 suits to associate, and in India this natural tendency has been 
 crystalized. The leading advantages of the system would 
 seem to be that it tends to make the low born content with 
 their lot, and that each son is brought up to follow the calling 
 of his father, by which means each profession and calling will 
 be filled by men better educated and qualified than where 
 there is a constant shifting of members of the family from 
 one calling to another. The reality of even this advantage 
 may be debatable. On the other hand to western men the 
 tyranny of the system seems intolerable. Its rigidity prevents 
 spontaneity and progressiveness, and removes all hope from 
 the low born of rising out of his class. The evolution of the 
 race seems to require selection from the whole mass of popu- 
 lation, if a maximum of vigor is to be maintained among the 
 leaders. Dynasties of rulers invariably degenerate and either 
 die out or are cast out because of their weakness or vice. 
 Though the village system is regarded by many writers on 
 law and government as primitive and an embryonic govern- 
 ment, it prevailed over most of India till the advent of the 
 British, and is still maintained throughout a great part of 
 the country. The details of the system vary, its leading char- 
 acteristics are a well defined district of land occupied by a 
 community, whose local affairs are regulated by officers usu- 
 ally chosen by the people but sometimes hereditary. In a 
 large percentage of the villages the title to the land was held 
 in common and taxes to the sovereign were paid by the com- 
 munity as a unit from the proceeds of the harvest. The vil- 
 lage authorities assigned the land for tillage to the various 
 citizens, and adjudged all controversies betw^een them. The 
 tillage was usually separate, even where the title was in com- 
 mon. In other villages the land was held in severalty, but in 
 dealings with the sovereign power and in the payment of 
 taxes it w^as regarded as the unit. This system is not patri- 
 archal, though it possibly may have been so in its earliest 
 form. 
 
 The kings and rulers seem to have regarded the people as 
 
i86 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 not entitled to much in return for the taxes paid and services 
 rendered the sovereign. Aside from defending them against 
 outside foes, the government never attempted much in their 
 behalf. In public works there is nothing worthy of mention 
 but palaces, temples and the great roads constructed by the 
 Mughals. Though the people of the higher castes, the twice 
 born, have always enjoyed some advantages of education, it 
 has been given them by the Brahman caste and private teach- 
 ers, not by the king. The fertility of the soil and the patient 
 industry of the people have led to most excessive and burden- 
 some taxation, to great pomp and luxury in the palaces and 
 to extreme distress among the poor when crops have failed, 
 as they occasionally do. One-third of the gross yield of the 
 land seems to have been regarded as about the right proportion 
 to take, and under the Mughals this was exacted from the 
 villagers and is at this day by the British in many parts from 
 the best lands. 
 
 Nowhere else on the face of the earth can be found so dense 
 a population, covering such a vast extent of country, living 
 under an ancient system of laws and yet without a general 
 government, as existed in India at the advent of the British. 
 China during most of its history has had a well organized 
 governmental system, whose authority has been recognized 
 over most or all of its territory. Its people also have been 
 mainly of one race. India exhibits the peculiar spectacle of a 
 vast empire, with endless diversity of races, speaking many 
 different languages, yet recognizing and obeying in its main 
 precepts a code of laws promulgated in the dim past by un- 
 known persons, a code which was never promulgated by a 
 sovereign power having dominion over the ancestors of the 
 people or the land in which they dwell. It owes its authority 
 mainly to the teachings of the Brahmans and to its adoption as 
 the rule of decision by the judges and rulers in past ages, as it 
 has been adopted and followed by the British in recent times. 
 Some analogies to this may be found in the adoption of the 
 principles of the Roman civil law by countries never subject 
 to the empire, and in the adoption of the Koran as the law 
 of all Mohammedans, but in the one case the system was 
 
INDIA • 187 
 
 gradually developed under a strong government ruling a vast 
 empire, and in the other the authority of the law is consequent 
 on religious faith. 
 
 The area of the country we have been considering is nearly 
 a million and a half square miles and it now has a population 
 of nearly or quite 250,000,000. Among this vast mass are 
 remnants of what are believed to be the earliest inhabitants of 
 the country, whose lowest type is exhibited by the savage 
 Andaman islanders, wholly devoid of all civilization. Superior 
 to these yet still very low in the scale of humanity are the 
 monkey faced tribes of the south, the Bihls and other pre- 
 datory hill tribes and the almost numberless fragmentary 
 remnants of races that in past ages may have held extensive 
 districts. Above these are the industrious descendants of 
 Mongolian stocks, the Dravidians, the Indo Chinese, the Af- 
 ghans, Mughals, Arabs, Persians and the proud descendants 
 of that race which composed the Vedas and promulgated the 
 codes. This vast empire is now subject to the government of 
 a little island on the most remote border of the hemisphere. 
 The government of the British will be considered in another 
 place. 
 
 • Though Great Britain has long maintained its sovereignty 
 over India it has never attempted to impose its system of laws 
 on the people. The ancient stratification of society still per- 
 sists and the code of Manu is still the basis of the law adminis- 
 tered in the* courts. This code is so remarkable in its precepts 
 and has so profoundly influenced the vast population of India 
 for thousands of years that it is well worthy the careful study 
 of every investigator in the field of human laws. A summary 
 of its provisions with copious extracts from the more striking 
 parts will be found in the Appendix. 
 
 The student who seeks a comprehensive knowledge of the 
 rules actually applied throughout all that vast country, extend- 
 ing from the valley of the Indus to Siam, encounters a most 
 perplexing multiplicity of details. The Code of Manu is recog- 
 nized as the foundation of the laws of Hindostan and also of 
 Burmah. Siam and Ceylon, yet there is wide divergence in the 
 practical application of it in different places. 
 
i88 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 As a result of the teachings of Gautama the Code of Manu, 
 though still recognized as the basis of the laws, was greatly 
 modified in those districts where the Buddhist faith prevailed. 
 The Burmese code, called the Damathat, gives the primary 
 classification of men as Chiefs, Brahmans, wealthy and poor, 
 and elsewhere the mercantile class is mentioned as a distinct 
 order. In the twenty-third section of the fourth volume of 
 the Burmese code, the Royal family is mentioned as the high- 
 est class, and other relations of the King, the great Chiefs, 
 ministers or lords, the lesser lords, lords of lower degree, 
 wealthy class Brahmans, thoogyees of villages, governors, land 
 measurers, and those whom the King had advanced, as con^ 
 stituting the next class. The second class and the mercantile 
 are each divided into the great, middle and lesser. The right 
 of the King to raise from the lower to the higher orders is 
 asserted and the rigid rules of inherited castes do not obtain. 
 Though the system evolved by the early Aryan invaders 
 spread over all India as the basis of all the written laws, in 
 the east it has been modified by the influence of Buddhism 
 and the Chinese and in the west by Mohammedanism. Ow- 
 ing to the lack of a single governing force having authority 
 over the whole country no version of the code has at any 
 time found full recognition, even throughout the whole of the 
 Indian peninsula, and the actual administration of the law 
 has at all times been more or less dependent on the will of 
 despotic rulers, having authority over more or less of the 
 country, according to circumstances. 
 
 The Burmese code exhibits marked differences in the theory 
 of the distribution of inheritable property. The rules given 
 are very loose and indefinite. On the death of the father 
 the eldest son is given *'the riding horse, elephant goblet, betel 
 apparatus, sword, clothes and ornaments, and of the slaves, the 
 betel carrier and two water carriers; and let the mother have 
 her clothes and ornaments, goblet, betel apparatus^ and all 
 female slaves. Let the residue be divided into four parts, of 
 which let the eldest son have one and the mother and younger 
 children have three. This is the law when the mother does 
 not marry again; if the mother uses the property for neces- 
 
INDIA 189 
 
 sary subsistence let her have the right to do so. If the mother 
 takes another husband (a thing prohibited by the code of 
 Manu), the portion of the eldest son, animate and inanimate, 
 shall be noted before witnesses and taken care of; and if he 
 be too young to separate from his parents, and the mother 
 dies, let him have all that has been apportioned to him above 
 and, having divided the portion of the mother into four parts, 
 let the stepfather have one part, and the eldest son three. 
 The original property and debts of the step- father shall not 
 be divided but of the mother's original debts let the step- 
 father pay one-fourth; having valued the house let the step- 
 father have one-fourth." Law^s of Menoo, Vol. 10, sec. 5. 
 
 On the death of the mother "let the eldest son have one 
 male slave, one pair of good buffaloes, one pair of oxen, one 
 foreign and one Burman goat, with one pay of arable land; 
 with the exception of these things let the father and younger 
 children have all the property animate and inanimate." 
 
 In case the father is not possessed of the specific property 
 named, compensation in money is provided for arid, if not 
 able to pay, less is to be given according to his means. 
 
 On the death of the father the eldest son only is assigned 
 his share. The younger sons must wait till the death of the 
 mother. 
 
 When both father and mother die leaving only daughters, 
 the eldest takes all her mothers clothes and ornaments, and 
 all other property is divided into twenty parts, of which the 
 eldest takes one. The balance is then again divided into 
 twenty parts, and the next daughter takes one, and after a 
 third division for a third daughter the balance is divided 
 equally among all. 
 
 Where father and mother both die leaving sons only, the 
 eldest takes the clothes and ornaments of the. father and the 
 remaining property is divided into tenths of which he takes 
 one. The remainder is divided into tenths of which the sec- 
 ond son takes one; the balance is again divided into tenths 
 of which each of the others takes a share, and the remainder 
 is then divided equally among all. 
 
 In case there are both sons and daue^hters the eldest son 
 
190 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 takes the father's clothes and ornaments, the eldest daughter 
 the mother's, and the residue is then divided into fifteenths 
 and distributed to each according to age on the above prin- 
 ciple till the seventh distribution has been made, and the bal- 
 ance is then divided equally. 
 
 After these regulations follow others fixing the rights of 
 step-fathers and step-mothers, and children of the half-blood, 
 of collateral relation, and providing for cases which would 
 seem likely to be rare and exceptional. The tenth volume of 
 the Burmese code, which relates to the law of inheritance, 
 contains eighty-one paragraphs and covers fifty-six pages. 
 Besides these there are various provisions on the same subject 
 in other parts of the code. The right of a woman to own 
 property is generally recognized throughout India, but with 
 varying local regulations. 
 
 A compilation of Hindu laws translated from the Sanskrit 
 into Persian and from the Persian into English called the 
 Gentoo Code contains provisions relating to property rights 
 in quite strong contrast with western laws. 
 
 'Tf a man owes money to several creditors, he shall first 
 discharge that debt which was first contracted and so in or- 
 der." Sec. 5, page 25. 
 
 This would seem more just than the law which favors the 
 hard creditors who first attaches his debtor's property. 
 
 Gifts made under the impulse of violent fear, anger, lust, 
 grief, by mistake, in jest, by a child or an incompetent person, 
 or when intoxicated may be recovered back. In times of 
 calamity a woman may borrow for necessaries and bind her 
 husband to pay the debt, and the husband may at such a time 
 give away his wife with her consent. The father may also 
 sell or give away his son with his consent. 
 
 In cases of partnership capital furnished by one is regarded 
 as equivalent to the labor of another and profits are divided 
 according to agreement where one is made, but, in the absence 
 of an express contract, according to the amount of capital 
 contributed and services rendered. 
 
 When robbers go to a distant country and return with their 
 booty this code provides for its division. The magistrate, that 
 
INDIA 191 
 
 is the ruler of the district, takes one-tenth to one-sixth of the 
 whole, a chief takes four shares, a stout man two, and a com- 
 mon man one. 
 
 The contracts of prostitutes are recognized and enforced, 
 and the law protects them from violence or abuse. 
 
 The penalties denounced against crime by the Gentoo code 
 are graded all the way from a small fine to crucifixion, the 
 latter punishment being imposed for highway robbery or 
 robbery committed by breaking through a wall. For killing 
 a goat, a horse or a camel, a hand or a foot shall be cut ofif, 
 but this does not apply to those who make their living by 
 butchery. 
 
 In the Burmese code very great prominence is given to do- 
 mestic relations and penalties for illicit sexual intercourse. 
 The grounds for separation of husband and wife are many, 
 and minute provisions are made for division of the property 
 in cases of separation. 
 
 The religion of the Buddhists does not allow capital punish- 
 ment. This code shows many marks of the influence of the 
 Buddhist religion, and punishments are mainly by fines and 
 the use of the rattan. In no case is the death penalty im- 
 posed by the code, though it is in fact sometimes inflicted by 
 despotic rulers, and the evil passions of men sometimes find 
 expression in bloody deeds, notwithstanding the general ac- 
 ceptance of a religion of peace. 
 
 Perhaps this code states the immoraHty of war as pointedly 
 and gives it a more formal sanction than any other authori- 
 tative expression of legal principles. 
 
 "When there has been a revolution or change of rulers, in 
 a country, there are four cases which may, and four which 
 may not be prosecuted. Of the cases which may not be prose- 
 cuted, they are murder, obscene language and assault with 
 wounding, theft, and adultery; these are the four which shall 
 not be prosecuted after a change of kings. The five which 
 may be prosecuted are debt, inheritance, disputes regarding 
 lands the property of convents (church property) hereditary 
 slaves, and deposits; these are the five which may be prose- 
 cuted notwithstanding a change of rulers." Vol. 2, Sec. 8, 
 page 43- 
 
192 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 No similar provision is contained in the code of Mann. 
 
 By this law the abominable crimes incident to war are ex- 
 cused, while the arbitrary and unjust rules of slavery and 
 inheritance continue without regard to the fortunes of war. 
 Though the principles of this section are not generally em- 
 bodied in the published codes of the Christian states, they are 
 recognized and enforced in practice. Except when committed 
 in violation of military discipline, the grossest crimes of sol- 
 diers go unpunished. 
 
 Not only have the Indian law-makers evolved an elaborate 
 body of written rules for the determination of the rights of 
 parties, but rules of pleading, evidence, presumption and prac- 
 tice have also been established. By the G^ntoo code a person 
 cannot be brought into court when celebrating a marriage, 
 while sick, or engaged in religious duties or as a vakeel, at- 
 torney, and generally if at work he must be allowed to finish 
 his task. A party may appear in court either in person or by 
 attorney, except in cases of murder, robbery, adultery, eating 
 prohibited food, false abuse, false witness and one other 
 disgusting offence in which the principals must answer in 
 person. When the plaintiff and defendant come before the 
 court the plaintiff shall state his case so "that the words be 
 few and the meaning extensive," and that the first and last 
 parts be well connected and consistent. If he. states his case 
 in writing the defendant must then do so. Numerous rules 
 of pleading are given, and mistakes subject the party making 
 them to a fine, but not to the loss of his rights. The defend- 
 ant must answer within seven days and if he fails to do so 
 judgment may be rendered against him. A person accused 
 of murder, robbery, scandalous abuse of a magistrate, calling 
 a woman unchaste, destruction of valuable goods, criminal 
 conversation with the wife of the father other than the mother 
 of the accused, or brought to answer a matter concerning a 
 cow, a dispute over a slave girl, or drinking wine, must answer 
 at once. In all other causes the defendant may have delay 
 but the accuser shall in no case make delay, except in case of 
 calamity. The Burmese version of the code fixes a general 
 statute of limitations, barring claims for money, lands and 
 
INDIA 193 
 
 slaves held adversely for ten years; but in cases relating to 
 lands and slaves given to pagodas temples and convents, 
 boundary marks between cities or villages and a slave de- 
 scended in the family from forefathers of the owner, and 
 whose class is unknown, there is no limitation of action. The 
 Gentoo code prescribes eleven years for chattels and twenty- 
 one years for land, where the plaintiff is under no disability, 
 with a longer limitation in cases of trust, extending to sixty 
 years where it relates to land. By this code it is provided : 
 
 "When an arbitrator of discernment hears any affair he 
 shall first demand of the plaintiff 'What is your claim?'. The 
 plaintiff shall then relate his claim. Afterward he shall de- 
 mand of the defendant 'What answer do you return in this 
 case?'. The defendant also shall then repeat his answer. 
 Upon thus having heard the accounts of both plaintiff and 
 defendant, he who thoroughly investigates the nature of the 
 affair is called an arbitrator of discernment, and such an arbi- 
 trator as this shall be chosen." Chapter 3, Sec. i, page 103. 
 
 "When two persons upon a quarrel refer to arbitrators 
 those arbitrators at the time of the examination shall observe 
 both the plaintiff and the defendant narrowly and take notice, 
 if either and which of them when he is speaking, hath his 
 voice falter in his throat or his color change or his forehead 
 sweat, or the hair of his body stand erect, or a trembling 
 come over his limbs, or his eyes water, or if, during the trial, 
 he cannot stand still in his place, or frequently licks or moist- 
 ens his tongue or hath his face grow dry, or in speaking to 
 one point wavers and shuffles off to another, or if any per- 
 son puts a question to him, is unable to return an answer ; from 
 the circumstances of such commotions they shall distinguish 
 the guilty party." Page 119. 
 
 Rules of evidence are quite different from those prevailing 
 in the West. One may give false testimony to preserve life, 
 and falsehood employed to procure a marriage, obtain sexual 
 intercourse or benefit a Brahman are excusable. Page 130. 
 Writings may be proved by a comparison of hands. Second- 
 ary evidence in the form of heresay from eyewitnesses is 
 allowed. 
 
194 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 *'A minor until fifteen years of age, one single person, a 
 woman, a man of bad principles, a father, or an enemy, may 
 not be a witness, but if the father and the enemy are men of 
 good disposition and speakers of truth, and men are well ac- 
 quainted with the goodness of their dispositions and veracity, 
 these two persons may be witnesses." Page 124. 
 
 The legal profession of which no mention is made in the 
 code of Manu is not practiced gratuitously as it was in ancient 
 Rome, but the lawyer is a paid advocate whose right to com- 
 pensation is enforced. Physicians also are protected by the 
 courts, and aided in collecting their pay. The Burmese code 
 provides : 
 
 "Oh King! if any one shall call a doctor to prescribe for a 
 sick person, and the doctor for the sake of the pay and to 
 relieve the sick person, shall administer medicine to him; or 
 if the doctor is called to wash the patient's head or avert the 
 evil influence of the stars, and shall go to where he is called, 
 and holding a small knife or stile for writing, shall only lay 
 hold of the banisters or ascend the stairs, and if the sick man 
 before his arrival, shall obtain relief, and on recovery shall 
 ask 'did you use any charm? — did you give me one of your 
 pills? — did you wash my head, or avert the evil influences of 
 the stars?' — and insensible to friendship shall refrain from 
 paying; if the doctor have an affection for him, he may get 
 off paying; but if not he shall pay five tickals of silver. If 
 a good doctor reaches the banisters, stairs or door; and a 
 good pleader, though he do not state the case, if he only put 
 up the sleeves of his jacket, or set down preparatory to speak, 
 they shall be paid." 
 
 "Any good pleader, though the statement of his case may 
 not have been taken down, if he has only just sat down, or 
 put up the sleeve of his jacket, shall have a right to his pay. 
 There shall be no plea that the case was not noted. 
 
 "If the client shall run away or conceal himself, the pleader 
 shall bear the whole amount of the decree. If he produce or 
 hand over the client, he is free, and shall have a right to ten 
 per cent for his pay and security. If a pleader be bad he 
 must take the consequences ; if a court messenger commit any 
 
INDIA 195 
 
 wrong, he must take the consequences ; the cause he is engaged 
 in shall not suffer. 
 
 ''If a pleader shall have gained a cause he has a right to a 
 percentage. If he loses it, he has a right to a reasonable 
 remuneration. If it be a matter of life or death, or redemp- 
 tion for the same, and the xlient shall not suffer death, or pay 
 the forfeit; the pleader has a right to a fee of thirty tickals 
 of silver, the price of his client's body." 
 
 "If a man shall say to a doctor 'give me medicine — if I 
 recover, take me as a slave'; if he do recover, and do not 
 wish to become the slave of the doctor, he shall have a right 
 to the legal price of his body, thirty tickals of silver." Vol. 
 2, sees. 19 and 20, page 49. 
 
 In Burmah trial by ordeal is allowable, but in a far more 
 mild form than that which once obtained in Europe. 
 
 "Oh, excellent king ! the decisions by ordeal are as follows : 
 1st., each of the parties are made to take one tickals weight of 
 water in their mouth, and light candles of equal length; this 
 is called the trial by fire: 2d. the trial by water, both parties 
 are made to go under water: 3d, both parties are made to 
 chew one tickal's weight of rice; 4th, both parties to dip into 
 molten lead. Of these four, in the trial by fire, let the person 
 whose light goes out first be the loser if before the light goes 
 out, one shall cough out the water from his mouth, in con- 
 sequence of some portion having gotten into the trachea, let 
 him lose; if the lights go out together, and neither cough out 
 the water, let them spit out the water, and on weighing it, the 
 person whose water weighs least, loses. In the trial by water, 
 let the person who first comes up lose. In the trial by chewing 
 rice, let each be made to chew one tickal's weight, and if be- 
 fore the cup with which time is measured sinks, the rice of 
 one be all finished, or swallowed) and one not, let the one 
 whose rice is not finished lose; if they be finished together, 
 let them wash out their mouths in a cup, and let him in whose 
 water there is the greatest portion of rice lose, and let him 
 whose water is the cleanest win. As regards dipping into 
 (molten) lead let the person who is burned lose, and he who 
 is not burned win. Thus the recluse said." Vol. 9, sec. 16, 
 page 254. 
 
 i 
 
196 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Witchcraft was recognized and dreaded and is defined, de- 
 tected and punished in accordance with the provisions of the 
 next section which gives some idea of the superstitions which 
 prevail in that country. 
 
 ''Oh, excellent king! as regards the seven kinds of witches, 
 or wizards; there is the witch who is so by reason of his 
 condition; the two who are so by reason of medicine; the 
 four who are hereditarily so by reason of the Nat of their 
 parents, taking up his abode in the person continually, these 
 are the seven. Of these seven the witch called hmau-wen, 
 or kaway myonk, is the greatest ; next below him is the hneet- 
 padat, the next is ieng-ta-lien or goung-pyan, the next zauga- 
 nee, the next tha-tsong, the next kyuy-tsong, and the next 
 let-touk-tsong. 
 
 "Of these kinds of wizards, the athortsong, kyay-tsong and 
 let-tsong are those who at night eat flowers and parched grain 
 within the enclosure around their own houses, fire issuing 
 from their mouths. Of these the kyay-tsong and the let-tsong, 
 become witches by taking certain medicines; the atha-tsong 
 are so constitutionally, they do not bewitch people. If they 
 are thrown into water seven cubits deep, they can sink so as 
 to leave one, two or three knots of the rope above water. 
 These are not proper objects to be banished from the village 
 or district but the person who accuses them is not to be held 
 in fault, he had a right to accuse them. It shall not be said 
 that they sank in the water or that they floated. The state- 
 ment of both parties, accuser and accused, is true; they are 
 and they are not witches ; let them therefore bear the expenses 
 equally. 
 
 "Besides these ; the kaway cannot sink in the water, and the 
 kneet-padat, though with great exertion, he can get under the 
 water, he can only sink two knots (or cubits), five are left 
 above water; the ieng-ta-lien and the zau-ganee are the same. 
 These four are wizards by reason of the Nat, who has been 
 worshipped by the ancestors in succession, taking up his abode 
 in their bodies. They eat the food put out for them in the 
 small flat bamboo frames used for winnowing grain, and in 
 little baskets; they bewitch people so as to cause their death. 
 
INDIA 197 
 
 and then eat them; they also dig up the human bodies from 
 the grave and eat them. Of these (the last), three cannot 
 bewitch a person across a running stream, and even in the 
 same village or district, they cannot bewitch a person seven 
 houses distant. If these float, they must be banished the 
 district. The kaway can bewitch a person even if a stream 
 intervene, so this witch must be banished beyond several 
 streams, to free the village from his influence. In these seven 
 matters, these are truly the traditionary rules from the be- 
 ginning of the world for trying any man or woman who 
 practices witchcraft. In accordance with them, let the guar- 
 dians of the law, the king, nobles, thoogyees, and heads of 
 villages, after having arranged all the preliminary steps in 
 strict conformity with the ceremonial prescribed for the trial 
 of the seven kinds of wizards by the ancient teachers, select 
 a piece of still water where there is no current, and in which 
 there are no stumps of trees, rocks, or inequalities, and throw 
 them into it. All matters connected with witchcraft are only 
 made clear by the ordeal of water. As regards the doctors 
 tamee, yooaytan, and other things, they are uncertain, and not 
 to be depended on, whether the witch has bewitched another, 
 and the fact is discovered, or the witch or wizard of them- 
 selves confess that they are so. The four witches above men- 
 tioned, even if people are afraid to associate with them, 
 should be admonished by the three gems (god, the law, and 
 the priests), and warned to desist (from these evil practises) 
 and they should be called on to declare in the presence of the 
 gems that they will observe the (five) moral duties and will 
 renounce their bad habits, and to swear by the three gems 
 that they will in future practice good works. This is the 
 way good kings, embryo Boodahs, decide, and if the king 
 passes sentence in like manner, the rains will be abundant, the 
 rivers full, and the country flourishing and quiet. Thus the 
 son of the king of Brahmahs, the recluse called Menoo said." 
 The race which developed so complete a system of laws and 
 of the administration and application of them to all forms 
 of controversies has utterly failed to construct a form of 
 government adapted to wide dominion or designed to check 
 
198 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the abuses of rulers. All the great empires of India of which 
 we have any account have been established by foreign con- 
 querors. 
 
 The authority of the king was in most instances established 
 by military force. He might be a member of either the Brah- 
 man or Cshttriya caste but very rarely of an inferior one. 
 The superiority of the Brahmans has been perpetuated by 
 education rather than by military force or political combina- 
 tion. The Brahmans learned and conducted the religious 
 rites and ceremonies and claimed to stand next to the gods. 
 They were the teachers and expositors of the laws and to 
 them were referred all questions of right. Their enduring as- 
 cendency is clearly traceable to education and the recognized 
 law of inheritance, not merely of property, but also of caste, 
 of personal status, as a superior order. 
 
 The Brahmans from very early times have been readers 
 and writers. The mass of literature produced in the past is 
 very great. Just when and how the various provisions found 
 in the codes first came to be adopted there is no available 
 means for determining. 
 
 The religious conceptions of the people have tended to in- 
 dividuality and segregation rather than extended combina- 
 tions. The idea has prevailed that a man may purify and 
 elevate his own soul by separation from his fellow men, 
 through meditation and religious studies and observances. 
 Testing moral worth by the good done to others and the 
 value of social combinations by the advantages of mutual 
 help, seems to have been generally discountenanced. Perhaps 
 it may be difficult to establish a charge of general lack of 
 fraternal feeling among the people, but it seems clear that 
 there has not been great capacity for organizing and combin- 
 ing to accomplish common ends. The common mistake of 
 rating the relation of the individual to an imaginary personal 
 god as of more importance than his relation to his fellow 
 man and of assuming that there can be merit in conduct 
 which does not tend to the well being either of the individual 
 himself or some other person, has prevailed there, yet pos- 
 sibly not more generally than in other parts of the world. 
 
INDIA 199 
 
 To abstain from all crimes and vice is the observance of a 
 part of the moral law, but the more important and more diffi- 
 cult task is to promote the welfare of the individual, his family 
 and all others whom he can aid. The first may be termed 
 passive morality, the second active. Passive morality affords 
 peace and repose, active morality leads to a full and glorious 
 life of enjoyment and satisfaction. In India as well as in 
 Europe the most extended combinations of the strength and 
 vigor of men have been formed for vicious purposes. The 
 activities of war have generally appeared greater than those 
 of peace, though exerted for immoral ends. Thousands of 
 years of combinations of men to destroy each other have not 
 yet taught them to make equally great combinations for 
 mutual aid. 
 
 The relative value of the civilization of any country can- 
 not be safely gauged by the conditions existing at some se- 
 lected point of time. If estimated in the eleventh century, 
 Europe must have been condemned as the country of robbers 
 and murderers, or if during the thirty years war as one in 
 which the people generally had gone mad over religious medi- 
 tations and discussions. 
 
 The people of the United States of America from 1861 to 
 1865 must have been condemned as a great family of fratri- 
 cides, who deliberately sought each other's destruction without 
 just cause on either side. 
 
 Measured by the conditions prevailing throughout the last 
 one, two or three thousand years, it may well be claimed that 
 the civilization of India has been superior to that of Europe. 
 There have been more people, and they have been less at war 
 with each other and better supplied with enjoyable things than 
 the Europeans as a whole. It is only within the past hundred 
 years that population has multiplied rapidly in Europe and 
 the general scale of comfort among the masses materially ad- 
 vanced. All this gain comes from diminished efforts to de- 
 stroy each other and more numerous and extensive combina- 
 tions for mutual profit and advantage. It is strange indeed 
 that men are so slow to perceive how quickly and bountifully 
 obedience to the command to love and help one another is 
 lewarded. 
 
200 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 If all men knew that they must remain on earth through 
 successive incarnations and must find heaven or paradise here 
 and not elsewhere, possibly there would be more disposition 
 manifested to make the world better during this life in order 
 to prepare it for the next. Whether the souls of this genera- 
 tion shall return and inhabit the earth in the next or not is a 
 matter of belief rather than of knowledge, but certain it is 
 that our children and their descendants must abide in it till 
 the race becomes extinct. No legacy can be passed down to 
 posterity of such inestimable value as a well learned lesson 
 of peace, concord and mutual aid. The boundaries of the 
 moral law will be found coterminous with those of the true 
 relations of man to man and to the living beings on earth. 
 British rule in India has not yet revolutionized the educational 
 system. The policy of giving free and universal instruction 
 to the young does not prevail in the British Isles and very 
 naturally would not be carried into India. The British have 
 however made progress in introducing those great exponents 
 of modern civilization, the railroad, telegraph, printing press 
 and post office. Through these practical lessons of coopera- 
 tion are taught and local animosities are diminished by com- 
 mercial intercourse and social contact. The eradication of 
 caste prejudices is a task of great difficulty and can only be 
 effected by radical changes in the educational system and re- 
 ligious teachings. The British maintain their rulership largely 
 by taking advantage of local animosities and caste distinctions 
 through which the natives are deterred from combining, and 
 the government employs one to curb another. Increased in- 
 tercourse with each other and with the outside world must in 
 time produce their logical effects on the people, but the inertia 
 of such a mass is very great and can only be overcome in a 
 long period of time or by an exceptional wave of enlighten- 
 ment, such as comes to any people only once in many cen- 
 turies. India has had its experiences of this kind in the past 
 and may again in the future. 
 
 Note. — The extracts from the code of Manu are taken from the trans- 
 lation of Sir William Jones edited by G. C. Houghton and published by 
 Cox & Baylis, London in 1825. Those from the Burmese Code are from 
 a translation published by the Baptist Mission at Philadelphia in 1848. 
 
CHAPTER X 
 
 China 
 
 In the study of any subject allowance must be made for 
 perspective in order to gain a just comprehension of it. China 
 is not merely geographically at the antipode to western Eu- 
 rope and America, but it is equally remote and dissimilar in 
 its civilization. First consider what the Chinese Empire is 
 geographically. In area it covers about 4,200,000 square 
 miles, about 421,000 square miles more than all Europe. 
 China proper has an area of about 1,312,326 or about 389,000 
 square miles less than Europe, exclusive of Russia. In climate 
 it includes all varieties from the tropical district of Kwang 
 Tung, to the regions of perpetual snow in the mountains of 
 Thibet and Mongolia. In soil it has all gradations from the 
 inexhaustible fertility of the rich loess lands of Chili, Shan-Si, 
 Shen-Si, Kan-suh and Ho-nan to the barren rocks and sandy 
 deserts of Gobi, and the equally barren peaks of the Thian- 
 Shan and Kuen-Lun. Its surface shows every variety of 
 formation from level plain to craggy mountain, and the most 
 varied flora from the dense growth and endless variety of the 
 tropics to the poverty and barrenness of the regions of per- 
 petual frost. Its majestic rivers are but slightly inferior to 
 the Mississippi, the Amazon and the Nile. Its fauna is rich 
 and varied in species and numbers. But in nothing else is it 
 so marked as in the numbers of its people and its unique 
 civilization. The latest estimates accredit the empire with 
 400,000,000 or about 45,000,000 more than all Europe con- 
 tains. While the empire includes many tribes not of Chinese 
 stock, and differing more or less in type from the Chinese, 
 the great bulk of the population is distinctly of one race, 
 speaking one language, with no more difference of dialect 
 than is found in England, France or Germany. This vast 
 empire is now, and for many centuries has been, ruled by one 
 
 201 
 
202 EVO^LUTION OF GOVERNMENTS AND LAWS 
 
 government, while Europe with its boasted superiority is di- 
 vided at this day into nineteen separate and independent na- 
 tions. Not only do the people of one of these nations speak 
 a language different from that of nearly every other, but 
 several of the nations include people speaking many different 
 tongues. The United Kingdom of Great Britain and Ireland, 
 with a population about equal to that of the province of 
 Kiang-Su, includes English, Welsh, Scotch and Irish. Russia 
 includes Laps, Finns, Russians, Poles, Slavs, and Cossacks, 
 differing widely from each other in language, customs and 
 race characteristics. 
 
 China proper is divided into eighteen provinces, but all 
 are under one government and one system of laws. The 
 political map of Europe, ever since history began, has been 
 subject to frequent and great changes. The nineteenth cen- 
 tury has seen nations rise and fall and boundaries of nations 
 expand and contract from one decade to another, to such an 
 extent as to render a map twenty years old utterly unreliable. 
 
 While China has had its internal wars and has at times been 
 subjected to a divided rulership, it still has maintained its in- 
 tegrity as a nation through thousands of years. It has been 
 conquered by Tartars without revolutionizing its customs 
 and laws, and with but slight effect on the great Chinese mass. 
 Through all changes and vicissitudes the civilization to be 
 found in China has been distinctly Chinese. Long before 
 letters were introduced into Greece, the Chinese had their 
 unique system of characters. The name of the inventor and 
 date of the invention are given in one tradition as Fuh-hi 
 3200 B.C. and in another as Tsang-ki 2700 B.C., either date 
 however is sufficiently remote to precede the time when Cad- 
 mus carried the alphabet into Greece by over 1500 years. 
 That much progress in agriculture and the arts had been made 
 long before the Greek tribes migrated from Asia Minor into 
 Greece, is amply proved by the historical records of the Chi- 
 nese, which extend back in credible and definite form at least 
 as far as the reign of Yaou 2356 B.C. The first weaving of 
 silk is ascribed to Si-ling-shi wife of the Emperor Hwang-ti 
 about 2600 B.C. 
 
CHINA 203 
 
 For early records of China, we look only to China. No 
 neighboring nation can furnish us contemporary side lights. 
 Of all the people of eastern Asia the Chinese first invented a 
 written language and first became historians. Whether in 
 authentic writings they antedate the Egyptians is a question 
 on which archeologists may differ, but certain it is that their 
 early histories are far more numerous and copious than those 
 of any other people on earth. It is surmised by some, that 
 the progenitors of the race migrated into China from the 
 vicinity of the Caspian Sea, but the writer does not know on 
 what evidence, for no ancient Chinese record is referred to 
 as proving it, and there are no older or other records on 
 the subject. 
 
 The Chinese like the Egyptians, wer^ first found in the 
 country they now inhabit. Their civilization has grown and 
 continued to abide where it now exists. It has until very 
 recent times received no marked impulse from without except 
 the Buddhist religious teachings. No conquering horde has 
 ever swept over the provinces of China and supplanted the 
 ancient race with its own people. The Tartar conquest begun 
 by Jenghiz Kahn and completed under Kublai, while bloody 
 and destructive in the paths of the invading armies, failed to 
 destroy or supplant the ancient stock. The subsequent Man- 
 chu conquest was a change of rulers, but slightly affecting 
 the great multitude. Throughout all ages China has been secure 
 against outside foes, except such as entered from the North. 
 The barren inaccessible heights of the Himalayas on the south 
 have ever interposed an im.passible barrier against invasion 
 from that direction. The barren steppes of Thibet and Mon- 
 golia could only be reached from the west after crossing the 
 mountain ranges of central Asia. Only from the north has it 
 been found practicable to lead in an invading army, and that 
 cold and inhospitable country has not frequently poured out 
 hosts of such magnitude as to overrun the densely peopled 
 provinces of China, and never sufficient to drive out the people. 
 
 Like all other people, in their accounts of the origin and 
 early history of their race, the Chinese narrate what is evi- 
 dently fabulous and imaginary. Records cannot antedate the 
 
204 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 art of making them, and traditions receive an accretion of 
 the marvelous as they are passed down from generation to 
 generation, till the real basis of truth is covered up and indis- 
 cernible. The period of 2,267,000 + years, given by Chinese 
 writers as having elapsed between the creation of man and 
 the time of Confucius, is entitled to no more and no less 
 credit than any other attempt at fixing the date of man's 
 advent on earth. Nor could anything be more whimsical than 
 an attempt to blend and harmonize authentic Chinese history 
 with the Mosaic account of creation. 
 
 The earliest accounts and traditions locate the Chinese along 
 the Yellow River in and about the province of Shan-si, and 
 while Chinese writers mention numerous long dynasties an- 
 terior to his time, Fuh-hi appears to be about the first ruler 
 whose existence at some date appears fairly certain. The 
 date of his accession to the throne is variously estimated from 
 2852 to 3322 B.C. He and his seven successors are said to 
 have reigned 747 years, giving an average of gsH years to 
 each. While such periods are shorter than the lives of Bibli- 
 cal patriarchs, they are equally improbable and afford no data 
 for computing the time of events. To Tuh-hi is attributed 
 the Yih-King, or Book of Changes, which stands at the head 
 as the most ancient of the Five Classics. The work appears 
 to us rather whimsical, being made up of essays on important 
 themes, illustrated by a combination of whole and broken lines 
 treated as different principles, placed one above the other in 
 various orders, and which are regarded as symbolical of the 
 subjects discussed. Perhaps, however, as symbols these linear 
 combinations may have meant more to the Chinese than they 
 do to us. 
 
 The early reigns are sometimes spoken of as though the 
 sovereign occupied the same relation to the people as in later 
 years, yet it is said that the successors of Hwang-ti were 
 elected by the people. The reign of Yao 2356 B.C. is taken 
 as the starting point of authentic history. In his reign there 
 was a great flood causing a permanent overflow of much land. 
 This was remedied by works carried on under Yu, who after- 
 ward succeeded to the throne. Little appears to be recorded 
 
CHINA 205 
 
 concerning the condition of the people or the constitution of 
 the government. The ruler is always treated as the subject 
 of the theme and matters of real interest are mentioned only 
 incidentally. It is evident, however, that in the earliest times 
 of which any accounts are preserved, the Chinese tilled the 
 soil, had domestic animals and wove. Yu established markets 
 and fairs to accommodate trade. In his time the Empire is said 
 to have extended from twenty-three to forty north latitude and 
 six degrees west and ten degrees east from Peking; this in- 
 cludes the greater part of China proper. The reigns of Shun 
 and Yu have been immortalized by Confucius and possibly he 
 has depicted their characters in accordance with what a ruler 
 should be, rather than with what these rulers really were. 
 
 From the time of Yu the throne became hereditary, but the 
 system prevailing appears to have been similar to the feudal 
 system of Europe in later times. If the character of the rule 
 of Yu is correctly given in the answer of Kaogao, as given in 
 the Shit King he acted on most enlightened maxims. "Your 
 virtue O ! Emperor is faultless. You condescend to your min- 
 isters with a liberal ease, you rule the multitude with a gen- 
 erous forebearance. Your punishments do not extend to the 
 criminal's heirs, but your rewards reach to after generations. 
 You pardon inadvertent faults however great, and punish de- 
 liberate crime however small. In cases of doubtful crimes 
 you deal with them lightly, of doubtful merit you prefer the 
 highest estimate. Rather than put to death the guiltless, you 
 will run the risk of irregularity and laxity. This life loving 
 virtue has penetrated the minds of the people, and this is why 
 they do not render themselves liable to be punished by your 
 officers." 
 
 The historic accounts of the early rulers of China are essen- 
 tially the same as those of monarchs everywhere who are 
 subject to no efficient restraints. There were wise and able 
 founders of dynasties, who ruled for the good of the people, 
 followed by degenerate offspring who were dissolute, cruel 
 and oppressive. No instance is recorded in history of a long 
 succession of hereditary monarchs w^ho have maintained a high 
 standard either of capacity or virtue. It is hardly worth while 
 
206 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 at this time to moralize on the causes of the degeneracy of 
 ruling houses. The fact that it invariably takes place is the 
 matter of prime importance. 
 
 The Shang dynasty founded 1766 B.C. ended 1122 B.C. 
 and was followed by the Chau. The reign of its founder 
 Wu Wang is looked to as a kind of golden age in Chinese 
 history, yet he committed the blunder of divinding the empire 
 into seventy-two petty feudal states, leaving himself only a 
 small portion of territory and power. The number of these 
 states was at one time as high as 125 and in the time of Con- 
 fucius fifty-two. The effect of this division was unceasing 
 internecine wars, which would have rendered the whole an 
 easy prey to a powerful outside foe. In 936 B.C. the Tartars 
 made their first incursions of which we have any account, 
 which were continued from time to time thereafter. At the 
 birth of Confucius 557 B.C. the empire was in this unhappy 
 condition. Though the Chau dynasty covers a period of weak- 
 ness in the central power and, as has always happened under a 
 feudal system, of strife and bloodshed among feudatories, if 
 yet endured longest of any in the history of the empire, cover- 
 ing a period of 873 years down to 249 B.C. It was during 
 this dynasty that those men appeared on earth who have ex- 
 ercised such marked influence on Chinese thought, habits, cul- 
 ture and society. Gautama, Confucius, Mencius and Lao Tze, 
 have each left distinct and enduring imprints of their teach- 
 ings, Gautama, deified as the incarnation of Buddha by his 
 devotees, taught men to do good deeds and live pure lives in 
 order that they might be happy in a future state of existence. 
 Though a native of northern India, his disciples spread his 
 doctrines into China in an early day, and his followers soon 
 became very numerous and have so continued to the present 
 time. 
 
 Confucius was a teacher of earthly wisdom rather than the 
 founder of a religious sect. He claimed no higher sanction 
 for his doctrines than reason and the tests of experience. He 
 sought to establish justice and promote the happiness of men 
 on earth. One of the means to these ends was a strong gov- 
 ernment honestly and faithfully administered. Another was 
 
CHINA 207 
 
 education of the young in correct principles. In character 
 he was much Hke Socrates, but more practical in his methods. 
 He was not averse to assuming responsibility and putting his 
 maxims into practical operation. Far more than any other 
 man, he has moulded Chinese customs and character down 
 to the present time. The antiquity of Chinese literature is 
 well shown by the works of Confucius. His Shu King, or 
 Book of History, consists of ancient public documents from 
 the time of Yao 2356 B.C. to King Hiang 627 B.C. These 
 include imperial ordinances, plans drawn up by ministers for 
 the guidance of the emperor, imperial proclamations, vows 
 of the monarch before Shang-ti when going out to battle, 
 and mandates, announcements, speeches, etc. by ministers of 
 state. These were edited by Confucius with his comments. 
 Confucius gathered the learning of the past and inculcated 
 the study of the wisdom of the ancients. He was far more 
 a compiler than an author. Of the five classics, though all 
 bear marks of his labors, only the Chun Tsiu or Spring and 
 Autumn Record was originally written by him. The Shi 
 King or Book of Odes is a collection of odes and songs origi- 
 nally gathered from all the provinces by the emperor Wang 
 Wau, numbering three thousand, most of which were lost 
 however before the time of Confucius. These odes were 
 used in connection with public and religious services. Only 
 311 of them are now extant. 
 
 Not the least important in its practical effect on after gen- 
 erations is the Li-ki or Book of Rites. • No other people are 
 so fond of ceremony as the Chinese. How far back in an- 
 tiquity this fondness extended we are not informed, but a 
 ritual is attributed to Duke Chau, 11 30 B.C., on which much 
 that is observed at the present day appears to be founded. 
 Though filled with ceremonial, the book of Rites also teaches 
 the principles governing the conduct of members of the family 
 toward each other, of citizens toward officials, of officials to- 
 ward citizens and each other. No other of the classical books 
 appears to have exercised so profound an influence on suc- 
 ceeding generations. Not only has it established a vast multi- 
 plicity of forms and ceremonies to be observed each day, but 
 
2o8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 it has profoundly impressed on all generations its fundamen- 
 tal principlesj respect, amounting very nearly to religious ven- 
 eration, for parents and rulers and politeness to everyone. 
 With these classical books the name of Confucius is insepar- 
 ably connected. Neither of them is a law book in the sense 
 in which the term is used in the west, nor yet are they re- 
 ligious compilations in a western sense, but many of the rules 
 they contain are more generally obeyed than any act of Con- 
 gress or Parliament, and many of the moral precepts they 
 teach are oftener repeated, and as generally accepted, as any 
 of the truths contained in the Bible are in Europe or America. 
 
 The secret of the remarkable influence of these "Five 
 Classics," as they are termed, seems to lie in their consonance 
 with Chinese tastes and character. No other people have half 
 the respect for what is ancient that they do. Though put in 
 form by Confucius, the material was already in existence, 
 and he professed merely to compile the wisdom of the past. 
 The age in which Confucius lived was one of weakness in 
 the central government and of war and contention among 
 the inferior rulers. Robbers and maurauders appear to have 
 been numerous. He sought to permanently remedy the evils 
 resulting from these conditions. 
 
 The Chau dynasty ended with the accession to the throne 
 of Chwang-si-ong Wang. After but three days reign he 
 died leaving the empire to his thirteen-year-old son Chi 
 Hwangti. By the extermination of the imperial house he 
 established his power, and by conquest of the petty states 
 extended the boundaries of the empire to include most of 
 China. He divided the country into thirty-six provinces over 
 which he placed governors, whose conduct he supervised. 
 From his time the essential features of the present govern- 
 mental system seem to date. He finally overthrew the feudal 
 system and firmly established the central power. Nor was 
 he possessed of the spirit of reverence for the wisdom of the 
 past which has since been so general. The title he assumed 
 of First Emperor and his destruction of all records written 
 anterior to his reign, evidence his vanity and desire to be 
 regarded in history as the founder of the empire. He prob- 
 
CHINA 209 
 
 ably was the first to rule all China. Although his order to 
 burn all ancient writings was carried out and nearly 500 of 
 the literati were burned alive to complete the infamy, not all 
 the copies were found by the vandals and so much was pre- 
 served in the memories of scholars, that the classics were again 
 reproduced by the generation then living. The peculiar sys- 
 tem of education then and now prevailing in China resulted 
 in literal memorizing by the scholars of the texts of these 
 works. Copies of some of the classics are also said to have 
 been found more than a century later, concealed in the walls 
 of Confucius' house. The destruction and reproduction of 
 these works indicate th^ prevalence of education at the time. 
 
 Though detached portions of the great wall along the north- 
 ern border of the empire had been built by the states for their 
 security against Tartar incursions, it was in the reign of 
 Hwangti that the work of joining these together into one 
 complete and continuous defense was undertaken, and suc- 
 cessfully carried out soon after his death. No other evidence 
 remains which so surely proves the vast extent of the empire 
 and the numbers and industry of the people as this great 
 work. The construction of a wall 1500 miles long, twenty- 
 five feet thick at base and fifteen at top from fifteen to thirty 
 in height, with detached towers at intervals, could not have 
 been accomplished without the cooperation of a vast multi- 
 tude of workers, within the period of ten years in which it 
 was built. The pyramids of Egypt are diminutive in com- 
 parison with this great structure. 
 
 Chi Hwangti died 210 B.C. His weak and debauched son 
 was unable to curb the turbulent leaders and was soon de- 
 posed. After five years of civil war, Liu Pang overthrew his 
 rival and was proclaimed emperor. This was followed by 
 the Han dynasty which continued till A.D. 221. The founder 
 Liu Pang is accredited with having instituted the system of 
 competitive examinations for office, though by some authori- 
 ties the perfection of the system in its present form is fixed 
 at A.D. 600. His successor appointed a commission to restore 
 as far as possible the texts of the literary works destroyed by 
 order of Hwangti. A period of comparative peace and pros- 
 
210 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 perity followed, but about the beginning of the Christian era 
 a rebellion broke out followed by disorders which resulted in 
 the establishment of the eastern Han dynasty. A.D. 65 
 Buddhism was introduced into China and about the same year 
 an embassy was sent into Turkestan, soon followed by an 
 acknowledgment of sovereignty of the emperor over Shen- 
 Shen, Khotan, Kuche and Kashgar. Their allegiance, how- 
 ever, soon fell off. 
 
 A.D. 220-221-222 the empire was partitioned between three 
 rival warriors into three kingdoms, the southern of which in- 
 cluded modern Tonquin. This partition was followed by a 
 long period of war and turmoil, during which power was 
 wielded only by such as demonstrated their ability to maintain 
 it. In 284 an embassy from the Roman Emperor Theodosius 
 was sent into China. This appears to have been the first case 
 of official intercourse between China and Europe. In 419 
 the eastern Tsin dynasty came to an end and the empire stood 
 divided between the northern and southern. Disorders con- 
 tinued until 590 when Yang Keen established the Suy dynasty. 
 He restored comparative peace and prosperity to the country, 
 though he fought and defeated the Tartars and Coreans. He 
 caused a survey to be made of his dominions and divided them 
 into chan, kiien, and hien with corresponding officers, and this 
 arrangement is still retained. At the close of his reign, which 
 lasted sixteen years, one of his sons forced the heir to strangle 
 himself and usurped the throne. He waged successful war 
 against the Tartars and increased the imperial library to 
 54,000 volumes. The burdens he imposed on the people, in 
 carrying on his wars and schemes of internal improvements, 
 caused a rebellion which terminated in his assassination. 
 
 In 617 the heir to the throne having been poisoned, Li Yuen, 
 a great general, proclaimed himself emperor under the name 
 of Tai-tsung founder of the Tang dynasty. During his reign 
 China was without doubt the most civilized and peaceful coun- 
 try on earth. With the crumbling of the Roman Empire, 
 Europe had settled into a period of ignorance and brutality 
 from which it did not emerge for many centuries. Chang 
 Kwan the son and successor of Li Yuen is spoken of as the 
 
CHINA 211 
 
 most accomplished prince in Chinese history. He estabHshed 
 schools and perfected the system of literary examinations. 
 He ordered a complete edition to be published of the Classics, 
 and paid special honors to the memor}^ of Confucius. He 
 promulgated a code for the direction of the judges. He had 
 a just appreciation of the responsibilities and dangers of a 
 sovereign and an anecdote is related that, when sailing on the 
 river Wei, he said to his sons. "See my children the v^aves 
 which float our fragile bark are able to submerge it in an 
 instant. Know assuredly that the people are like the waves, 
 and the Emperor like the fragile bark." 
 
 In his reign the boundaries of the empire were greatly ex- 
 tended toward the west, including Kuche, Khoten, Khorasan, 
 Kashgar and the Turkish tribes as far as the Caspian Sea, 
 over each of which was placed a military governor. Ambas- 
 sadors were sent to the imperial court from Persia and Rome. 
 In 635 a Roman priest was received and the emperor built 
 him a church. On the death of Chang Kwan, posthumously 
 styled Tai Tsung and the accession of Kaou-tsung, his wife. 
 Woo How, became the real master of the emperor and at the 
 death of her husband she set aside the heir and seized the 
 throne. She ruled with vigor and her armies were victorious. 
 The usual round of vigor on the throne, followed by vice, 
 external wars and internal rebellions, followed at last by a 
 division of the empire into many petty warring states, filled 
 out the balance of the Tang and five other brief dynasties suc- 
 ceeding it. In 960 General Chaou Kwang-yin was proclaimed 
 emperor by the army, which at that time seems to have held 
 all power, as did the Praetorian guard at Rome in earlier times. 
 In the tenth and eleventh centuries there were wars with the 
 Tartars and Khitans, resulting at times in the payment of 
 tribute by China to the Khitans. 
 
 Abbe Hue relates that in the eleventh century under the 
 Sung dynasty there were socialists in China and that there 
 was much radical political discussion. At the head of the re- 
 formers was W^angngan-Chi, a man of remarkable talents, 
 great learning and energy. Instead of showing profound de- 
 votion to the wisdom of the ancients, he attacked the existing 
 
212 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 order of things unsparingly. He charmed the emperor Chiu- 
 tsoung with his briUiant presentation of his doctrines and 
 gained great influence over him. In the sketch taken from 
 the work of M. Abel Remusat his teachings are thus sum- 
 marized : 
 
 ''The first and most essential duty of a government is to 
 love the people and to procure them the real advantages of 
 life, which are plenty and pleasure. To accomplish this ob- 
 ject it would suffice to inspire everyone with the unvarying 
 principles of rectitude, but, as all might not observe them, 
 the state should explain the manner of following these pre- 
 cepts, and enforce obedience by wise and inflexible laws. In 
 order to prevent the oppression of man by man the state 
 should take possession of all the resources of the empire and 
 become the sole master and employer. The state should take 
 the entire management of commerce, industry and agricul- 
 ture, into its hands with the view of succoring the working 
 classes and preventing their being ground to the dust by 
 the rich." 
 
 Tribunals were to be established to fix the prices of pro- 
 visions and merchandise and taxes to be imposed exclusively 
 on the rich for a certain number of years. Aged paupers and 
 unemployed working men were to be relieved from the treas- 
 ury. The state was to be the only proprietor of the land, 
 which should be assigned to the farmers by public authorities, 
 who should also distribute seed, to be returned after harvest. 
 The leading opponent of these doctrines was Sse-ma-kouang, 
 who employed modern arguments in opposition to these 
 schemes. Wangngan-Chi was given full authority to put his 
 reforms in operation and maintained his ascendency through- 
 out the reign of Cheu-tsoung. He added his own commen- 
 taries to the classical books, and reformed the examinations 
 for literary grades to correspond with his own views. This 
 brought down on him the hostility of the literati as well as 
 of all the privileged classes, and on the death of the emperor 
 he was deposed and his rival put in power. At the death of 
 Sse-ma-Kouang great honors were done his memory. Later 
 there was a revulsion of sentiment and his tomb was dese- 
 
CHINA 213 
 
 crated and great honors were paid to the memory of Wang- 
 ngan-Chi. While according to Hue Chinese historians record 
 the ill success of these schemes, the institutions of China seem 
 to bear some marks of his doctrines at this day as will appear 
 more fully when we enter on a consideration of the existing 
 system. On the other hand it is said that the reign of Chiu- 
 tsoung, lasting forty-one years, is the brightest period of 
 the dynasty. Certain it is that the discussion carried on at 
 this time produced a profound impression on Chinese polity. 
 
 Between 1127 and 11 63 the Kins pushed their conquests 
 till they overran the northern provinces of Chi-li, Shen-se, 
 Shan-se and Ho-nan and even advanced to the Yang-tsze- 
 Kiang. At this time the power of the Mongols was growing. 
 The invasion of China under Jenghiz Kahn commenced in 
 1 2 12. He first attacked the Kins and overran most of the 
 country occupied by them. He was succeeded by his son 
 Ogdai who completed the overthrow of the Kin dynasty. 
 Among the Mongols codes of laws were unknown, but Ogdai 
 found it necessary to promulgate a code and divide his new 
 and populous dominions into ten departments. Ogdai was 
 followed after two brief intervening reigns by Mangu, who 
 extended his conquests to the ^outh as far as Cochin China. 
 On his death in 1259 he was succeeded by the illustrious Ku- 
 blai, who completed the subjugation of the empire and ruled 
 from the Yellow Sea to the Dnieper and from the Arctic al- 
 most to the Strait of Malacca. This was the first foreign 
 dynasty ever established over all China. 
 
 The ambassadors sent by the Emperor Theodosius, A.D. 
 284 do not seem to have given any extended report of what 
 they saw in China. In the Arab ''Chain of Chronicles" is 
 contained an account of a visit to the Chinese court by Ibn- 
 Vahab in the ninth century. The description of what he saw, 
 though meager, corresponds with other accounts of the state 
 of the empire at that time. To Marco Polo we are indebted 
 for the first full and satisfactory account of China and its 
 civilization. His visit was during the reign of Kublai, whose 
 empire was then the most extensive ever established in Asia, 
 so far as is known. His description of the court and life of 
 
214 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Kublai exhibits a combination of the customs of the Tartar 
 nomad and the ceremonious Chinese courtier. During De- 
 cember, January and February, the emperor resided in the 
 palace at Kambalu. This palace is described as a complete 
 square, a mile on each side. This is but the outer wall and 
 edifices; within are others affording accommodations of all 
 sorts for the people and their stores of goods, etc. and gardens 
 with game preserves, and fish ponds. The inner palace he 
 says "is the greatest that ever was seen. The floor rises ten 
 palms above th^ ground and the roof is exceedingly lofty. 
 The walls of the chambers and stairs are all covered with 
 gold and silver and adorned with pictures of dragons, horses 
 and other races of animals. The hall is so spacious that 6,000 
 can sit down to banquet, and the number of apartments is 
 incredible. The roof is externally painted with red, blue, 
 green and other colors and is so varnished that it shines like 
 crystal and is seen to a great distance around. It is also very 
 strong and durably built." 
 
 The city is described as very large with broad, straight and 
 regular streets inclosed by a wall with twelve gates at each 
 of which 1,000 men kept guard. Around the city were twelve 
 very populous suburbs containing many stately edifices. The 
 guard of the great Kahn consisted of 12,000 horsemen. The 
 festivals held on the Kahn's birthday and the beginning of the 
 new year were celebrated with great magnificence and the 
 making of presents. On the latter day the presents from those 
 holding land and offices, he states, included vast quantities of 
 gold, silver, precious stones and merchandise, 5,000 camels, 
 100,000 white horses and 5,000 elephants, all of which were 
 exhibited in a grand procession. For hunting he kept leop- 
 ards, lynxes or stag-wolves and lions, as well as dogs. On 
 his great hunts he was attended by two parties of 10,000 men 
 each with 5,000 dogs. Besides these he had great numbers of 
 gerfalcons, vultures and falcons for hunting. At the expira- 
 tion of the three winter months, the great Kahn sallied forth 
 with a vast retinue. At a place named Choccia he pitched his 
 tents, 10,000 in number. That in which he held court was 
 of sufficient size for 1,000 knights, but he resided in another. 
 
CHINA 215 
 
 The inside of this was Hned with the finest furs. No one 
 was permitted to take game from March to October, nor to 
 keep dogs or falcons within twenty days' journey from his 
 residence. At Shandu in Tartary he had a very large palace, 
 which he occupied while hunting in that region and as a resi- 
 dence in June, July and August. The great number of horses, 
 dogs and other animals and the custom of moving from place 
 to place and dwelling in tents and movable palaces, accords 
 with the inherited tastes and habits of the Tartar, while the 
 elaborate ceremonials at the capital and elsewhere show the 
 influence of Chinese customs on the Kahn. The description 
 of the cities and country visited by Marco clearly shows how 
 fully the great Chinese mass retained its habits, manners and 
 customs, and how little effect the Tartar conquest had on 
 Chinese civilization throughout the empire. The Tartar 
 hordes were able to overcome the Chinese armies, but the 
 countless multitude of busy farmers, manufacturers and 
 traders plodded along the same as before, using the old lan- 
 guage, literature and customs. Marco describes separately 
 thirty-five different cities. He devotes the most space to 
 Kin-sai, modern Hang Chau, which he says was without doubt 
 the largest city in the world. The magnificence of its streets, 
 stone bridges, buildings, canal, lake, boats, markets and shops, 
 as well as on the great multitude of people and endless quanti- 
 ties of all the necessaries of life, he details at length. In all 
 the cities he visited he was astonished at the numbers of 
 people and the abundance of the provisions for their comfort. 
 Peace and plenty were the rule through the empire, with but 
 few exceptions. 
 
 Marco's description of the system of government and of 
 the laws is very incomplete. He says there were twelve very 
 great barons, who held command over all things in the thirty- 
 four provinces. They all resided in the city of Kambalu, 
 managed all the provincial affairs according to their will and 
 appointed the lords of the provinces'. For every province 
 there was an agent and a number of writers or notaries. The 
 twelve barons, called scieng in the Tartar language, ordered 
 the army to move wherever they willed, subject to the direc- 
 
2i6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 tion of the great Kahn. These are probably the same officers 
 he refers to as a council of twelve persons, having power to 
 dispose of the lands, governments and all things belonging 
 to the state, though not necessarily so. That arbitrary power 
 was exercised by the Kahn and his chief officers on occasion 
 is clearly manifest from the account he gives of the corruption 
 and oppression exercised by a Saracen named Achmac. He 
 gained so great influence over the Kahn that no one dared to 
 oppose him. ''Any charged by him with a capital offence, 
 whatever means he might employ to justify himself and 
 refute the accusation, could not find an advocate, for none 
 dared to oppose the purpose of Achmac. Thus he unjustly 
 caused the death of many, and was also enabled to indulge 
 his unlawful propensities. Whenever he saw a woman who 
 pleased him, he contrived either to add her to the number of 
 his wives or to' lead her into a criminal intimacy." This sway 
 continued twenty-two years. Finally the Kataians formed a 
 plot against him and killed him in the palace. For this the 
 ringleaders were summarily executed. On the return of 
 Kublai, who was absent from Kambalu at the time, he in- 
 ouired into the cause of the trouble and, finding Achmac's 
 seven sons equally guilty with their father, who had conferred 
 high offices on them, he caused them to be flayed alive. 
 
 The facilities for communication with remote provinces 
 were exceptionally fine. Great routes were established along 
 which, at intervals of from twenty-five to forty miles, com- 
 modious inns, well provided with comforts, were established, 
 in connection with which horses in great abundance were 
 constantly kept. Public officials and messengers were lodged 
 at these inns and furnished relays of horses. Of these inns 
 there were more than 10,000 and of horses kept in connection 
 with them more than 200,000. At intervals between these 
 stations were others of foot runners, three miles apart, who 
 carried letters and packages from station to station at the 
 rate of 100 miles a day, while horsemen made from 200 to 
 300 miles in twenty-four hours. Similar inns and couriers 
 on foot and on horseback are still maintained in some parts. 
 The paternal care. of the great Kahn over his people Marco 
 praises in this language. 
 
CHINA 217 
 
 "He sends his messengers through all his kingdoms and 
 provinces, to know if any of his subjects have had their crops 
 injured through bad weather or any other disaster, and if such 
 injury has happened he does not exact from them any tribute 
 for the season or year, nay he gives them corn out of his own 
 stores to subsist upon and to sow their fields. This he does in 
 summer, in winter he inquires if there has been a mortality 
 among the cattle and in that case grants similar exemption 
 and aid. When there is a great abundance of grain he causes 
 magazines to be formed, to contain wheat, rice, millet or 
 barley, and care to be taken that it be not lost or spoiled : then 
 when a scarcity occurs this grain is drawn forth and sold for 
 a third or fourth of the current price." The monetary sys- 
 tem Marco thus describes, 
 
 ''With regard to the money of Kambalu, the great Kahn 
 may be called a perfect alchymist, for he makes it himself. 
 He orders people to collect the bark of a certain tree whose 
 leaves are eaten by the worms that spin silk. The thin rind, 
 between the bark and the interior wood, is taken and from it 
 cards are formed like those of paper, all black. He then 
 causes them to be cut in pieces and each is declared worth 
 respectively half a livre, a whole one, a silver grosso of Venice 
 and so on to the value of ten bezants. All these cards are 
 stamped with his seal, and so many are fabricated that they 
 would buy all the treasuries in the world. He makes all his 
 payments in them and circulates them through the kingdom 
 and provinces over which he holds dominion, and none dares 
 to refuse them under pain of death. All the nations under 
 his sway receive and pay this money for their merchandise, 
 gold, silver, precious stones and whatever they transport, 
 buy or sell. The merchants often bring to him goods worth 
 400,000 bezants and he pays them all in these cards, which 
 they willingly accept, because they can make purchases with 
 them throughout the whole empire. He frequently commands 
 those who have gold, silver, cloths of silk and gold, or other 
 precious commodities to bring them to him. Then he calls 
 twelve men skillful in these matters, and commands them to 
 look at the articles and fix their price. Whatever they name 
 
2i8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 is paid in these cards, which the merchant cordially receives. 
 In this manner the great sire possesses all the gold, silver, 
 pearls and precious stones in his dominions. When any of 
 the cards are torn or spoiled the owner carries them to the 
 place where they were issued and receives fresh ones with a 
 deduction of three per cent. If a man wishes gold or silver 
 to make plate, girdles or other ornaments, he goes to the office, 
 carrying a sufficient number of cards, and gives them in pay- 
 ment for the quantity which he requires. This is the reason 
 why the great Kahn has more treasure than any other lord 
 in the world, nay all the princes in the world together have 
 not an equal amount." This currency went out of use on the 
 expulsion of the Mongols. The new dynasty issued notes at 
 first but discontinued them about 1455. 
 
 Kublai was tolerant of all religions and employed Saracens, 
 Christians and Buddhists as well as idolators of all kinds and 
 unbelievers. His domestic establishment was on a grand scale. 
 He had four wives, each of whom ranked as an empress and 
 had 300 maidens with eunuchs and other attendants. Besides 
 these he had his concubines. By his wives he had twenty- 
 two sons and by his concubines twenty-five. How many 
 daughters is not stated. Marco speaks of the manufacture 
 of beautiful porcelain, describes how all the people burn black 
 stones instead of wood, and drink wine made from rice and 
 many good spices. In Kin-sai each householder had written 
 on his door the name of all the members of his household, 
 which he revised when a birth or death occurred. This is 
 still required. What most impressed Marco was the peace, 
 good order, abundance of wealth and patient industry of the 
 people. He also highly praises the integrity of the merchants 
 of Kin-sai. Perhaps the most lasting monument to the energy 
 and public policy of Kublai is the grand canal which he ex- 
 tended and greatly improved. 
 
 After the death of the great Kahn the Mongol dynasty was 
 continued under Timur his grandson, and Wu Tsung, Ching 
 Tsung last of the line came to the throne at thirteen, a weak 
 debauchee. Hung Wu, a plebeian and former Buddhist priest, 
 headed a revolt, which resulted in the expulsion of the Mon- 
 
CHINA 219 
 
 gols and his elevation to the throne as the founder of the 
 Ming Dynasty. He estabhshed his capital at Nanking and 
 reigned thirty years. He named his grandson as his succes- 
 sor, but his son Yung-loh after five years seized the crov^n 
 and moved the capital back to Peking in 1403. He promul- 
 gated a code of lav^^s, framed under his direction, v^hich is the 
 basis of the existing system of today. In 161 6 the Manchu 
 Tartars invaded China and defeated the force sent against 
 them. Rebellions followed in the provinces, by taking ad- 
 vantage of v^hich and judiciously combining with one or other 
 of the factions, the Manchus finally gained complete ascend- 
 ency and in 1644 Shun-che was proclaimed emperor and foun- 
 der of the Tsing dynasty, which continued in power till the 
 revolution of 191 2. The whole empire was not reduced at 
 once, but by a policy combining vigor in war with humane 
 treatment of those who submitted, all opposition to the new 
 dynasty was gradually overcome. 
 
 A strange exhibition of power was that by which the people 
 were required to adopt the Tartar mode of shaving the front 
 of the head and braiding the hair in a long cue. To introduce 
 and enforce a fashion by command even of a despot, is some- 
 thing rarely attempted and much more rarely enforced and 
 maintained. This mode of wearing the hair, now a distinctive 
 mark of the Chinaman, thus appears to be a Manchu fashion 
 forcibly imposed on the Chinese. It is said that many pre- 
 ferred to lose their heads rather than submit to this badge 
 of subjection. 
 
 Kang-hi, son and successor of Shun-che, ascended the im- 
 perial throne in 1661 when only eight years old. He was a 
 contemporary of Louis XIV, who became sovereign of France 
 the same year. The reign of Kang-hi was long and illustrious, 
 lasting sixty-one years. He extended the boundaries of the 
 empire and devoted his energies with indefatigable diligence 
 to the improvement of the system of government. His son 
 Yung-ching succeeded him in 1722 and ruled sixteen years 
 with great satisfaction to his subjects. He was succeeded by 
 Kien-hung his son who ruled mainly in peace for sixty years. 
 In his reign intercourse with western nations was established 
 
220 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and embassies were received from Russia, England and 
 Holland. 
 
 The first three Manchu sovereigns thus ruled the empire 
 with prudence and vigor for one hundred and thirty-five years, 
 with few wars either at home or abroad, and none seriously 
 threatening the integrity of the empire. Subsequent reigns 
 have been less fortunate and rebellions and foreign wars 
 have become more frequent. The government during the 
 last century has been, for the most part, without vigor, and 
 the universal law which ultimately brings ruin on every 
 hereditary dynasty has just brought this to the end. The 
 decay of despotic power does not necessarily indicate retro- 
 gression on the part of the nation but is often, nay usually, 
 the forerunner of distinct advancement. Weakness on the 
 part of the government always induces disorders, but these 
 are often prompted by a desire for better conditions. In 
 spite of all the vices and imperfections of its rulers, the pecul- 
 iar civilization of the Chinese has been preserved and the 
 almost incredible number of its people has continued to in- 
 crease. The accounts of the military operations of its rulers 
 and of rebel leaders, are calculated to convey erroneous im- 
 pressions as to the military qualities and army service of the 
 people in general. In western countries great wars have 
 usually called out a very large proportion of the whole number 
 of males of military age. Not so in China. The greatest 
 army ever raised in the whole empire probably never exceeded 
 one out of a hundred of the whole population. During the 
 greatest wars and the most serious rebellions, trade, agri- 
 culture and manufacture, except in the immediate locality of 
 the strife, have gone on without very serious interruption. 
 Thus the character of the Chinese people and of Chinese 
 civilization has been essentially unmilitary ever since the con- 
 solidation of the vast empire. 
 
 All authorities agree that the fundamental idea of the 
 Chinese government was patriarchal. The emperor was re- 
 garded on the one hand as the son of Heaven, deriving his 
 power directly from the Supreme Being, and on the other, as 
 the father and mother of the people, responsible for their 
 
CHINA 221 
 
 conduct as well as their welfare. He w^as the supreme legisla- 
 tive, judicial and executive power. The theory of the origin 
 of his power is not essentially different from that of other 
 monarchs who rule by right divine. The Chinese, however, 
 ingrafted a very important qualification on the doctrine. So 
 long as the emperor ruled well, he was under the immediate 
 protection of Heaven, but when he did ill it was an indication 
 that the favor of Heaven had been withdrawn from him. The 
 attributes of the princely man, taught in the classics as the 
 words of Confucius, are much more lofty than can often be 
 found on a throne. In the "Invariable Centre" it is said : 
 
 'Tt is only the man supremely holy, who by the faculty of 
 knowing thoroughly and comprehending perfectly the primi- 
 tive laws of living beings, is worthy of possessing supreme 
 authority and commanding men, who by possessing a soul 
 grand, firm, constant and imperturbable is capable of making 
 justice and equity reign — who by his faculty of being always 
 honest, simple, upright, grave and just, is capable of attract- 
 ing respect and veneration — who by his faculty of being 
 clothed with the ornaments of the mind and talents procured 
 by assiduous study and by the enlightenment that is given by 
 an exact investigation of the most hidden things and the most 
 subtle principles, is capable of discerning with accuracy the 
 true from the false and good from evil." 
 
 Mencius, who stands second only to Confucius in the esti- 
 mation of the learned Chinese, said, 
 
 "When the prince is guilty of great errors the minister 
 should reprove him: if after doing so again and again he 
 does not listen, he ought to dethrone him and put another in 
 his place." 
 
 In the Ta-hio or Grand Study the leading principles of 
 government are thus stated by Confucius, 
 
 "The ancient princes who desired to develop in their states 
 the luminous principle of reason that we have received from 
 Heaven, endeavored first to govern well their kingdoms ; those 
 who desired to govern well their kingdoms, endeavored first 
 to keep good order in their families ; those who desired to 
 keep good order in their families endeavored first to correct 
 
222 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 themselves, those who desired to correct themselves endeav- 
 ored first to give uprightness to their souls, those who desired 
 to give uprightness to their souls endeavored first to render 
 their intentions pure and sincere, those who desired to render 
 their intentions pure and sincere endeavored to perfect as much 
 as possible their moral knowledge and examine thoroughly 
 their principles of action." 
 
 "All men the most elevated in rank as well as the most 
 humble and obscure are equally bound to perform their duty. 
 The correction and amelioration of one's self, or self -im- 
 provement is the basis of all progress, and of all moral de- 
 velopment." Where is there anything better than this in any 
 language? The Grand Study concludes, 
 
 "If those who govern states only think of amassing riches 
 for their personal use, they will infallibly attract toward them 
 depraved men. These depraved men will make the sovereign 
 believe that they are good and virtuous, and these depraved 
 men will govern the kingdom. But the administration of the 
 unworthy ministers call down the chastisement of Heaven 
 and excite the vengeance of the people. When matters have 
 reached this point what ministers, were they ever so good 
 and virtuous, could avert misfortune? Therefore those who 
 govern kingdoms ought never to make their private fortune 
 out of the public revenues, but their only riches should be 
 justice and equity." 
 
 As the teachings of Christ have failed to make all of his 
 professed followers in the west live according to the golden 
 rule, so also the teachings of Confucius, studied in every 
 school in the empire, and a profound knowledge of which is 
 a prerequisite to appointment to office, have yet failed to 
 make ideal rulers of men corrupt by nature, yet that his 
 doctrines have wielded a powerful influence for good cannot 
 be doubted. The recognition of the classical books as author- 
 ity on moral and political questions operated as a limitation 
 on the despotic powers of the emperor in much the same 
 way that the unwritten British constitution limits the power 
 of the king, lords and commons. The vast and complicated 
 machinery of a government, ruling so many millions of peo- 
 
CHINA 223 
 
 pie, also necessitated system and order, which could not be 
 maintained under a government responding solely to the 
 arbitrary will of a despot. The checks and balances of the 
 system, though designed mainly to restrain subordinate offi- 
 cers within the legitimate bounds of their authority, operated 
 also to limit the powers of the emperor, in whom theoretically 
 all power was vested. 
 
 Under the Manchu dynasty the succession to the throne 
 was hereditary in the male line. The particular person was 
 designated by the sovereign, but kept concealed until after his 
 death. The person designated ceased to b<i known by his 
 personal name from the time of his accession to the throne 
 and was given a new name which is rather the name of his 
 reign than of himself. The deceased emperor was given a 
 posthumous name by which he is known in history. When 
 by revolutions a new dynasty was established, it received a 
 name which is continued till a new family accedes to power. 
 
 The imperial clan consisted of two classes. First the 
 Tsung-shih, lineal descendants of Tien-Mings' father, Hien- 
 tsu who assumed the title of emperor in 1616. Second the 
 collateral branches including the children of his uncles and 
 brothers who were collectively called Gioro. In the Tsung- 
 shih there were twelve degrees of rank. They were for the 
 most part shut out from useful employments and received 
 small allowancs. The titular nobility of the empire were not 
 a rich and powerful body, but without power, land, wealth, 
 or influence. The near kmsmen of the emperor received 
 liberal allowances, while the lowest orders were given mere 
 pittances. The imperial clan governed Manchuria and indi- 
 viduals were given such appointments in the empire as the 
 emperor saw fit. Besides these there were five ancient orders 
 of nobility, the titles of which cannot be accurately trans- 
 lated. The descendants of Confucius received especial honor. 
 
 The government of the Imperial court was under the gen- 
 eral supervision of a board styled the Nui-wti-fu composed of 
 a president and six assessors under whom were seven subordi- 
 nate departments. These officers attended the emperor and 
 empress at sacrifice and oversaw the households of the em- 
 
224 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 peror's sons, as well as directed the care and supplies of the 
 palace and imperial guard. The seven departments had duties 
 distributed as follows : to one the supply of food and raiment, 
 to the second, regulation of the emperor's body guard, the 
 third regulated domestic etiquette and brought the inmates 
 of the harem, led by the empress, to do homage to the em- 
 peror, the fourth selected ladies to fill the harem and collected 
 the revenue from crown lands, the fifth attended to repairs 
 of the palace and cleaning of the city streets for the use of 
 the royal family, the sixth had charge of the emperor's herds 
 and flocks and the seventh was a court for the punishment of 
 crimes in and about the palace. The work of the imperial 
 household was performed by about 2,000 eunuchs. There was 
 but one empress, but the emperor was entitled to seven legal 
 concubines and actually kept as many illegal ones as he pleased. 
 Every third year he looked over the Manchu daughters and 
 chose such as he liked for concubines. They were restored 
 to liberty at twenty-five, unless they had borne children to 
 the emperor. 
 
 The empress dowager was the most important subject in 
 the palace and was paid special honor by the emperor. The 
 government of the empire was carried on through the instru- 
 mentality of a very complex official system. First and closest 
 to the emperor were two councils, the Nui-Koh or cabinet 
 which consists of four principals and two assistants, half 
 Manchus and half Chinese. Their duties were to "deliberate 
 on the government of the empire, proclaim abroad the im- 
 perial pleasure, regulate the canons of state, together with 
 the whole administration of the great balance of power, thus 
 aiding the emperor in directing the affairs of state." 
 
 Subordinate to these were six grades of officers numbering 
 in all over 200, more than half Manchus. Under the six chan- 
 cellors were ten assistants and some of these were constantly 
 absent in the provinces. The principal business of this cabi- 
 net was to receive imperial edicts and rescripts, present mem- 
 orials, lay before the emperor the affairs of the empire, 
 procure his instructions thereon and forward them to the 
 proper office to be copied and promulgated. The papers in 
 
CHINA 225 
 
 matters for consideration were arranged and slips of sug- 
 gested answers were attached when they were presented to 
 the emperor for his decision. Dayhght in the morning was 
 the hour for commencing his work. Each document was first 
 read by one of the Manchu hioh-ss, who then handed it to a 
 Chinese hioh-s2 who passed it to the emperor. By a stroke 
 of the vermihon pencil he indicated the answer to be made. 
 Appointments to office, removals, degradations, orders relat- 
 ing to taxes, the army, the provinces, etc., were thus rapidly 
 made. 
 
 The members of this cabinet separately also had other 
 duties to perform in connection with bureaus to which they 
 were attached and in presiding on state occasions. They 
 were also keepers of the twenty-five great seals of the gov- 
 ernment, each of which was of special design and for par- 
 ticular uses. Subordinate officers attached to the cabinet 
 translated documents into the various languages found in the 
 empire. 
 
 The Kiun-ki-Chu, council of state, was organized about 
 T730 and was for a time the most influential body under the 
 emperor. The numbers of this council, usually about four, 
 varied at the pleasure of the emperor by whom they were se- 
 lected. Its duties were "to write imperial edicts and decisions, 
 and determine such things as are of importance to the army 
 and nation in order to aid the sovereign in regulating the 
 machinery of affairs." They assembled in the palace between 
 five and six in the morning. The emperor's commands were 
 written down by them and, if public, transmitted to the inner 
 council to be promulgated, but, if the matter required secrecy 
 or haste, a dispatch was forthwith made up and sent to the 
 Board of War to be forwarded. In all important trials or 
 consultations, this council was called in and acted either sepa- 
 rately or in connection with the appropriate court. Lists of 
 officers entitled to promotion were kept by it and names to 
 fill vacancies furnished the emperor. 
 
 The duties of these supreme councils were general, covered 
 all departments of the government and served to connect the 
 head of the empire with all subordinate bodies at the capital 
 
226 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and in the provinces. Under such a system, very much de- 
 pended on the personal character of the emperor. The King 
 Poo commonly called the Peking Gazette was compiled from 
 the papers presented before the General Council. Every 
 morning ample extracts from the papers decided upon by the 
 emperor, including orders and rescripts, were placarded on 
 boards in a court of the palace. Couriers were dispatched to 
 all parts of the country with copies of these papers for local 
 officials. Certain persons were also permitted to print these 
 documents, but without comment or change, and circulate 
 them to their customers. This was the Gazette and was simply 
 a record of official acts. It was very generally read by edu- 
 cated people and kept them informed of the proceedings of 
 the government. In the provinces, abridged editions were 
 made for readers not able to take the complete one. 
 
 Under these two principal councils were the Ltih-Pu or six 
 boards, of ancient origin. At the head of each board were 
 two presidents and four vice-presidents alternately Manchus 
 and Chinese, and over those of Revenue, War and Punish- 
 ments were also superintendents who were frequently mem- 
 bers of the Cabinet. Sometimes the president of one board 
 was superintendent of another. There were three subordinate 
 grades of officers in each board and a great number of clerks 
 for details. The organization of the departments was very 
 complete and systematic. 
 
 (i) The Li Pu or Board of Civil Office, ''has the govern- 
 ment and direction of all the various officers in the civil ser- 
 vice of the empire and thereby it assists the emperor to rule 
 all the people" and their duties included ''whatever appertains 
 to the plans of selecting rank and gradation, to the rules de- 
 termining degradation and promotion, to the ordinances grant- 
 ing investures and rewards, and the laws for fixing schedules 
 and furloughs that the civil service may be supplied." Civil- 
 ians were presented to the emperor and all civil and literary 
 officers were distributed by it, but the cabinet and General 
 Council had advisory oversight of the high appointments. 
 The board was divided into four bureaus. The first attended 
 to distinctions, promotions and exchange of offices. The sec- 
 
CHINA 227 
 
 ond investigated the merits and demerits of officers and their 
 worthiness to be advanced or degraded and prescribed fur- 
 loughs. The third regulated retirements from office for 
 mourning or filial duties, and supervised the registration of 
 official names. The fourth regulated the distribution of titles, 
 patents and posthumous honors. Posthumous honors were 
 highly regarded by the Chinese and theirs was the only gov- 
 ernment that ennobled dead ancestors for the merits of their 
 descendants. While nominal titles for the living might be 
 bought, the dead received honor only on the basis of their 
 own merits or those of their offspring. 
 
 (2) The H^i Pit or Board of Revenue, "directs the terri- 
 torial government of the empire and keeps the lists of popu- 
 lation in order to aid the emperor in nourishing all the people ; 
 whatever appertains to the regulations for levying and col- 
 lecting duties and taxes, to the plans for distributing salaries 
 and allowances, to the rates for receipts and disbursements 
 at the granaries and treasuries and to the rights for trans- 
 porting by land and water, are reported to this board, that 
 sufficient supplies for the country may be provided." It also 
 obtains the measurement of all lands in the empire, and ap- 
 portions taxes and conscriptions according to population, etC; 
 One minor office of this board prepared lists of all Manchu 
 girls fit for selection as inmates of the imperial harem. There 
 were fourteen subordinate departments to attend to the re- 
 ceipt of the revenue from each of the provinces, each of which 
 corresponded with the treasury department in its respective 
 province. Some of the revenue was paid in money, some in 
 grain and merchandise and this required a vast force to 
 handle it. This board was also a court of appeals on certain 
 cases respecting property and superintended the mint in each 
 province. 
 
 (3) The Board of Rites, "examines and directs con- 
 cerning the performance of the five kinds of ritual observ- 
 ances and makes proclamations thereof to the whole empire, 
 thus aiding the emperor in guiding all people. Whatever 
 appertains to the ordinances for regulating precedence and 
 literary distinctions, to the canons for maintaining religious 
 
228 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 honor and fidelity, to the orders respecting intercourse and 
 tribute and to the forms of giving banquets and granting 
 bounties, are reported to this board . in order to promote 
 national education." The five classes of rites were defined to 
 be, those of a propitious and those of a felicitous nature, mil- 
 itary and hospitable rites and those of an.infilicitous nature. 
 A subordinate department of this bureau regulated the eti- 
 quette to be observed at court on all occasions and in the per- 
 formance of official duties, also styles of dress, caps, etc., the 
 figure, size, color and nature of the fabrics and ornaments 
 worn, carriages and accoutrements and number of followers 
 and insigna of rank of those taking part in public affairs. 
 It also regulated the ceremonial of personal intercourse be- 
 tween persons of the various ranks, minutely defining the 
 number of bows and degree of attention which each should 
 pay to the other when meeting officially. It also directed the 
 form of official correspondence and regulated the literary ex- 
 aminations, number of graduates, distinction of classes, forms 
 of selection and privilege of successful candidates and the 
 establishment of government schools. Another office super- 
 intended the religious rites to be observed. A third called 
 ''host and guest" office looked after tribute and tribute bearers 
 and attended to foreign embassies, supplied provisions and 
 interpreters and regulated the mode of intercourse with for- 
 eign states. The fourth supplied the food for banquets. The 
 details of the duties of this Board filled fourteen volumes of 
 the Statutes. The ancient Book of Rites is the foundation of 
 ceremonies and the standard to be followed. Confucius said 
 "Truly nothing is without its ceremonies" and careful ob- 
 servance of the rites is regarded by the Chinese as the certain 
 test of refinement and gentility. Connected with this board 
 was a Board of Music, whose duties were to study the princi- 
 ples of harmony and melody, to compose musical pieces and 
 form musical instruments and suit them to the various occas- 
 ions where they were required. Official music, however, was 
 not highly regarded by foreigners. 
 
 (4) The Ping Pu or Board of War "has the duty of aid- 
 ing the sovereign to protect the people by the direction of all 
 
CHINA 229 
 
 military affairs in the metropolis and provinces and to regu- 
 late the hinge of the state upon the reports received from the 
 various departments regarding deprivation of, or appointment 
 to Office, succession to, or creation of hereditary military 
 rank : postal or courier arrangements, examination and se- 
 lection of the deserving and accuracy of returns." The navy 
 was also under this Board. The management of the post 
 was under a special department and dispatches were trans- 
 mitted by an efficient system. The board of war discharged 
 its duties through four bureaus. It had no control over the 
 household or city troops, nor of the Bannermen distributed 
 throughout the empire. 
 
 (5) The Hing Pti or Board of Punishments, "has the gov- 
 ernment and direction of punishments throughout the empire 
 for the purpose of aiding the sovereign in correcting all 
 people. Whatever appertains to measures of applying the 
 laws with leniency or severity, to the task of hearing evidence 
 and giving decisions, to the right of granting pardons, re- 
 prieves or otherwise and to the rate of fines and interest are 
 all reported to this Board, to aid in giving dignity to national 
 manners." This Board had both civil and criminal jurisdic- 
 tion. Its officers met with those of the Censorate and Tali Ss 
 and the three formed the San Foh S2, or Three Law Cham- 
 bers, which decided on capital cases brought before them. In 
 the autumn, these three united with members from six other 
 courts, forming collectively a Court of Errors to review the 
 decisions of provincial judges before reporting them to the 
 emperor. They were required to conform their decisions to 
 the laws and were not vested with any arbitrary powers. Sub- 
 ordinates of this Board recorded the emperor's decisions on 
 appeals from the provinces at the autumnal sitting, when the 
 entire list was presented for the emperor's final decision, and 
 saw that these sentences were transmitted to the provincial 
 judges. Another office superintended the publication of the 
 code, with all the changes and additions. A third oversaw 
 jails and jailers. A fourth received fines taken in commu- 
 tation of punishment, and a fifth registered receipts and 
 expenditures. 
 
230 EVO'LUTION OF GOVERNMENTS AND LAWS 
 
 (6) The Kung Pu or Board of Works, "has the govern- 
 ment and direction of the pubhc works throughout the em- 
 pire, together with the current expenses of the same, for the 
 purpose of aiding the emperor to keep all the people in a 
 state of repose. Whatever appertains to plans for buildings 
 of wood or earth, to the forms of useful instruments, to the 
 laws for stopping up or opening channels, and to the ordi- 
 nances for constructing the mausolea and temples, are re- 
 ported to this Board in order to perfect national works." 
 The work of the bureaus in this department presents a singu- 
 lar combination of duties. One bureau supervised the con- 
 dition of city walls, palaces, temples, altars and other public 
 structures, sat as a prize office, furnished tents for the em- 
 peror's journeys, supplied timber for ships, and pottery and 
 glassware for the court. Another attended to the manufac- 
 ture of military stores and utensils used by the army, sorted 
 the pearls from the fisheries, regulated weights and measures, 
 furnished death warrants to governors and generals, and 
 had charge of arsenals, stores, camp equipage and other things 
 appertaining to the army. A third had charge of all water 
 ways and dikes, repaired and dug canals, erected bridges, 
 oversaw the banks of rivers by deputies stationed along their 
 courses, built vessels of war, collected tolls, mended roads, 
 dug sewers in Peking and cleaned out its gutters, preserved 
 ice, made bookcases for public records and looked after the 
 silks collected as taxes. The fourth attended chiefly to the 
 condition of the imperial mausolea, the erection of the sepul- 
 chers and tablets of meritorious officers, buried at public ex- 
 pense, and the adornment of temples and palaces, and 
 superintended all workmen employed by the Board. The 
 mint was under the direction of two of the vice-presidents 
 and the manufacture of gun powder was intrusted to two 
 ministers. 
 
 The Li Fan Yuen commonly called the Colonial Office had 
 the government and direction of the external foreigners, 
 ordered their emoluments and honors, appointed their visits 
 to court and regulated their punishments, in order to display 
 the majesty and goodness of the state. This branch of gov- 
 
CHINA 231 
 
 ernment superintended all the tribes of Mongolia, Cobdo, Hi 
 and Koko-nor. These are called "external foreigners," to 
 distinguish them from the tribes of Sz-chuen and Formosa 
 who are termed "internal foreigners." There are also the 
 "internal barbarians, comprising the unsubdued mountaineers 
 of Kweichan, and the "external barbarians" including the 
 people of all foreign countries. The Colonial Office regulated 
 the government of the nomads and restricted their wander- 
 ings. Its officers were all Manchus and Mongols. Besides 
 the usual secretaries there were six departments. The first 
 two had jurisdiction over the minor tribes of Mongolia, ap- 
 pointed the local officers, collected taxes, alloted lands to 
 Chinese settlers, opened roads, paid salaries, arranged mar- 
 riage retinues, visits to court, presents made by the princes 
 and review of the troops. The third and fourth had similar 
 but less effectual control over the princes, lamas and tribes 
 of outer Mongolia. The fifth department directed the ac- 
 tions, restrained the powers, levied the taxes and ordered 
 the tributary visits of the Mohammedan begs in the Thian- 
 shan, Nan Lu. The sixth regulated the penal discipline of 
 the tributary tribes. Salaries were paid the MongoHan 
 princes according to an established scale. A tsin wang re- 
 ceived $2,600 and twenty-five pieces of silk per year, a Kiitn- 
 wang $1,666 and fifteen pieces of silk and so down to the 
 lowest in rank who got $133 and four pieces of silk. The 
 organization of these nomadic tribes partakes of both the 
 feudal and tribal system. The Chinese policy was to reduce 
 the power of the chiefs and make the people independent 
 owners and cultivators of the soil. 
 
 The Tu-chah Yuen or Censorate, "All examining Court" 
 was entrusted with the "care of manners and customs, the in- 
 vestigation of all public offices within and without the capital, 
 the discrimination between the good and bad performance of 
 their business, and between the depravity and uprightness of 
 the officers employed in them; taking the lead of other cen- 
 sors and uttering each his sentiments and reproofs, in order 
 to cause officers to be diligent in attention to their daily duties 
 and to render the government of the empire stable." 
 
23>2 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 The Censorate when joined with the Board of Punish- 
 ments, and Court of Appeals, formed a high court for the 
 revision of criminal cases and appeals from the provinces; 
 and in connection with the Six Boards and the court of 
 Representation and Appeal, made one of the Kin King or 
 ''Nine Courts" which deliberated on important affairs of 
 state. The officers were two censors and four deputy cen- 
 sors, besides whom the governors, lieutenant governors and 
 governors of rivers and inland navigation were ex-officio 
 deputy censors. A class of censors was placed over each of 
 the Six Boards whose duties were to supervise all their acts, 
 to receive all public documents from the Cabinet and, after 
 classifying them, transmit them to the several courts to which 
 they belonged, and to make a semi-monthly examination of 
 the papers entered on the archives of each court. All crimi- 
 nal cases in the provinces were under the oversight of the 
 censors at the capital, and also the department which super- 
 intended the affairs of the metropolis, revised its municipal 
 acts, settled the quarrels, and repressed the crimes of its in- 
 habitants. Theoretically the Censors had the right and rested 
 under the duty of expressing their opinions and criticising 
 all official dereliction coming under their observation, from 
 the emperor down, but to do so required exceptional courage 
 and uprightness, seldom found among politicians anywhere 
 and especially rare under a despotism. Instances of righteous 
 and fearless performance of this duty are not wanting how- 
 ever. Sung, a censor, sent in a memorial remonstrating with 
 the Emperor Kiaking upon his attachment to play actors and 
 strong drink, which degraded him in the eyes of the people 
 and disabled him from performing his duties. The Emperor 
 highly irritated called him to his presence and on his con- 
 fessing the authorship of the memorial asked him what pun- 
 ishment he deserved. He answered ''quartering" being told 
 to select some other he said "Let me be beheaded" and on the 
 third command chose to be strangled. He was ordered to 
 retire and the next day the Emperor appointed him governor 
 of Hi, thus removing him from the capital. Another censor, 
 during the Tang dynasty, when the emperor desired to in- 
 
CHINA 233 
 
 spect the archives of the historical office to learn what had 
 been recorded concerning him, under the excuse that he 
 wanted to know his faults so that he might correct them, 
 answered "It is true your Majesty has committed a number 
 of errors, and it has been the painful duty of our employment 
 to take notice of them; a duty which further obliges us to 
 inform posterity of the conversation which your Majesty has 
 this day very improperly held with us." The usual mode of 
 advising the Emperor was by a written remonstrance or 
 memorial. Many of these were inserted in the Peking Gaz- 
 ette for public information. The Tung-ching Ss, or Court 
 of Transmission, consisted of six officers, who received me- 
 morials from the provincial authorities and appeals from their 
 judgments by the people, which they presented to the Cabinet. 
 Attached to this court was an office for attending at the 
 palace gate, to await the beating of a drum, which, according 
 to ancient custom, was placed there that suitors by striking it 
 might obtain a hearing. This was also the channel through 
 which the people could appeal directly to the Emperor, and 
 instances occur where men and women traveled from remote 
 provinces to present their petitions to the "one man." 
 
 The Ta-li S^ or Court of Judicature and Revision had the 
 duty of supervising all the criminal courts in the empire and 
 formed the nearest approach to a Supreme Court of any in 
 the government. When the crime involved life, this and the 
 preceding united with the censors to form one court, and if 
 the judges were not unanimous in their decisions they must 
 report their reasons to the Emperor to decide the case. The 
 Hanlin Yuen or Imperial Academy was entrusted "with the 
 duty of drawing up governmental documents, histories and 
 other works; its chief officers take the lead of the various 
 classes, and excite their exertions to advance in learning in 
 order to prepare them for employments and fit them for 
 attending upon the sovereign." Its chief officers were two 
 presidents or senior members who attended on the Emperor, 
 superintended the studies of graduates and furnished semi- 
 annual lists of persons to be speakers at the celestial feasts, 
 where the essays of the Emperor were translated from or 
 
234 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 into Manchu and read before him. Subordinate to the two 
 seniors were four grades of officers, five in each grade, with 
 an unHmited number of senior graduates, each forming a 
 sort of college, whose duties were to prepare all works pub- 
 lished under governmental sanction. Subordinate to the Han- 
 lin Yuen was an office consisting of twenty two select mem- 
 bers, who in rotation attended on the Emperor and recorded 
 his words and actions. There was also an additional office 
 for the preparation of national histories. The members of 
 the Hanlin, being at the head of the literary graduates, formed 
 the body from which most important offices were filled. 
 
 There was also the Kwoh^tsz Kien or National College for 
 teaching graduates of the lower degrees and the Kin Tien 
 or Imperial Astronomical College, whose duties were defined 
 *'to direct the ascertainment of times and the movements of 
 the heavenly bodies in order to attain conformity with the 
 celestial periods and to regulate the notation of time among 
 men; all things relating to divination and the selection of 
 days are under its charge." The preparation of the almanac, 
 designating the lucky and unlucky days and other absurdities 
 inserted in it, were under their charge. 
 
 The various departments of the general government were 
 so arranged as to hold a check on each other. There were 
 two presidents over each board, not merely to assist, but to 
 watch each other and oversee the vice-presidents. The presi- 
 dent of one board was sometimes the vice-president of another 
 and by means of the censors brought under the cognizance of 
 several officers, whose mutual jealousies and ambitions placed 
 some check on each other and afforded some guarantee of 
 fidehty. 
 
 Having given thus a general view of the organization of 
 the government at the capital we proceed to a consideration 
 of the government of the provinces. The highest officers in 
 the provinces were the tsung-tuh, viceroys, and the futai or 
 fuyuen, governors. The tsung-tuh ruled over two provinces 
 or else filled two high offices in one, while the futai was over 
 one province, either independent or subordinate to a tsung- 
 tuh. The viceroy stood as the representative of the Emperor 
 
CHINA 235 
 
 in the territory. The futai filled a similar capacity but inferior 
 to the tsung-tuh when there was one. The departments of the 
 civil government were five zis., administration, literary, gabel, 
 commissariat, and excise, the first being also divided into the 
 territorial and financial and the judicial branches. At the 
 head of the first branch was the pu-ching sz, usually called the 
 treasurer, over the second the ngan-chah sz or criminal judge, 
 presided. These two officers acted together in important 
 business and the trial of important cases. The literary de- 
 partment was under the direction of an officer, selected by the 
 Imperial Academy called a hioh-ching. The gabel and com- 
 missariat were usually supervised by officers called tao or 
 tao-tai, sometimes termed intendants of circuit, who had 
 other functions also. The excise was under Kientuh or su- 
 perintendents. The collection of the revenue being difficult, 
 was mainly entrusted to local magistrates. The military gov- 
 ernment of a province included both sea and land forces. It 
 was under a titiih or commander-in-chief of which rank there 
 were sixteen. In five provinces the futai was commander-in- 
 chief and in Kan-suh there were two. Above the tituh^ in 
 point of rank but not of power, were garrisons of Manchu 
 Bannermen under a tsiang-kiiin or general, appointed and di- 
 rected by the captains general in Peking. The three officers 
 tsungtuh, futai and tsiang kuin, if there were one, formed a 
 supreme council and united in deliberating on a measure, 
 calling in the subordinate in whose department it belonged. 
 In these courts civilians took precedence of military officers. 
 The authority of the viceroy extended to life and death, to 
 making temporary appointments to fill vacant offices in the 
 province, to ordering troops to any part of it and taking such 
 measures as were necessary for the security and peace of the 
 province under him. The futai also had power of life and 
 death and jurisdiction of appeals in criminal cases and over- 
 saw the conduct of civilians under him. 
 
 Next in rank to the pu-ching sz, treasurer, and ngan-chah 
 sz, criminal judge, who always resided at the provincial capi- 
 tal, were the intendants of circuit who were located in the 
 circuits consisting of two or three prefectures united for this 
 
236 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 purpose. They were deputies of the two highest functionaries, 
 whom they were appointed to assist and reheve in the dis- 
 charge of their duties. Some were appointed to supervise 
 the proceedings of the prefects and district magistrates, others 
 stationed at important posts to protect them, and those con- 
 nected with foreign trade at open ports had no territorial 
 jurisdiction. Below these were the prefects or chief magis- 
 trates of departments called chifu, chichau, and ting timgchi 
 according as they were placed over fu, chau or ting depart- 
 ments. These officers received their orders through the 
 intendants, were responsible for their full execution and ex- 
 pected to know all that took place in their jurisdictions. 
 
 Departments were divided into ting, chau and hien having 
 each their separate officers who reported to the head of the 
 department over them. They were called ting chi, chi-chau 
 and chi-hien. 
 
 The parts of districts called ss were placed under the con- 
 trol of siun-kien, circuit restrainers or hundreders who formed 
 the last in the regular series of descending rank. The pre- 
 fects sometimes had deputies directly under them, as the 
 governor had his intendants, when the importance of their 
 departments required it. Besides these there were many other 
 deputies and assistants charged with particular duties in the 
 collection of taxes, oversight of the police, care of water ways, 
 etc. Besides the officers above mentioned there were a great 
 number of clerks, registrars and secretaries connected with 
 every officer of high rank and a multitude of petty subordi- 
 nates, with some duties to perform, but largely kept to em- 
 phasize the importance of their superiors. All above the chi- 
 hien were allowed private secretaries. The ngan-chah-sz had 
 jailers under their control, as had also the more important 
 prefects. 
 
 The hioh-ching or literary chancellor, in rank but not in 
 power, stood next the governor. Under him were head teach- 
 ers of different degrees of authority, residing in the chief 
 towns of the departments and districts. These had some 
 degree of supervision over the studies of students and the 
 colleges in the chief towns. The chancellor had exclusive 
 
CHINA 237 
 
 authority to confer the lower Uterary degrees, and he made 
 an annual circuit of the province for that purpose, holding 
 examinations in the chief towns of each department to which 
 all students residing within its limits could come. 
 
 The gabel or salt department was under the control of a 
 special officer called a ''commissioner for the transport of 
 salt." Above these commissioners were eight directors of the 
 salt monopoly, stationed at the depots in Chi-li and Shang- 
 tung, who also performed other duties. The revenue de- 
 partment was unusually large, owing to the collection of so 
 much in produce and merchandise. The transportation of 
 grain along the Yangtsz River was under the control of a 
 tsung Hih, who oversaw the disposal and directed the collec- 
 tion of it in eight of the provinces adjacent to the river. In 
 each of twelve provinces there was a liang-chu tao or commis- 
 sioner to collect grain and in the other six the duty was 
 performed by the pii-ching sz. The supervision of the subordi- 
 nates of this department rested with the prefects and district 
 magistrates. The number of provincial officers of the differ- 
 ent grades above referred to were given as follows : 
 
 8 Governors General or viceroys, six governing two 
 provinces each. 
 
 15 Governors. 
 
 19 Commissioners of Finance. 
 
 18 Commissioners of Justice. 
 
 4 Directors of Salt Gabel. 
 
 9 Collectors. 
 
 13 Commissioners of Grain. 
 
 64 Intendants of Circuit. 
 
 182 Prefects. 
 
 68 Prefects of Inferior Departments. 
 
 18 Independent Subprefects. 
 
 180 Dependent Subprefects. 
 
 139 Deputy Subprefects. 
 
 141 District Magistrates of the Fifth Class. 
 
 1232 District Magistrates of the Seventh Class. ^ 
 ^The Middle Kingdom. 
 
238 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 The military section of the provincial government was 
 under a ti-tuh or general who resided at a central post and in 
 conjunction with the viceroy and governor directed the move- 
 ment of troops. The native troops in each province were dis- 
 tinct from the Manchu and were divided somewhat after the 
 plan of the ancient Roman legion, cohort, maniple and cen- 
 tury, over each of which were appropriate officers. The gov- 
 ernor, major general, and Banner commandant had commands 
 independent of each other. Naval officers had the same 
 names as those in the army and changes and promotions were 
 made from one arm of the service to the other. The general 
 officers had power to send special messengers invested with 
 full powers to every part of their jurisdiction. 
 
 The Emperor sent commissioners, called Kiu-chai, to all 
 parts of the empire, ostensibly on particular business, but re- 
 quired to take general observations of what was going on. 
 In considering the extent of the jurisdiction and vast power 
 reposed in these various officers, it must be borne in mind that 
 each viceroy had under him more people than are to be found 
 in any but the greatest countries of Europe, that he stood as 
 the representative of the Emperor and of the supreme legis- 
 lative, executive, and judicial power, and that he constantly 
 exercised, in person and through his subordinates, more or 
 less of all these functions. The Emperor, with his great army 
 of assistants at Peking, watched over and directed not only 
 the affairs of the eighteen home provinces, but also the outer 
 dependencies. It is exceedingly difficult for one, accustomed 
 only to study western governments and laws, to gain a clear 
 conception of this vast governmental system, which owed 
 none of its principles, forms or policies to the suggestion of 
 other nations. The government like the people was indigenous 
 and to be understood must be viewed in connection with its 
 environments. 
 
 No officer was allowed to marry in the jurisdiction under 
 him nor to own land in it, nor have a near relative holding 
 office under him; and one was seldom continued in the same 
 station for more than three years. Manchus and Chinese were 
 mingled together and were expected to watch and mutually 
 
CHINA 239 
 
 check each other. Members of the imperial clan were required 
 to attend the meetings of the boards at the capital and ob- 
 serve and report what they deemed amiss to the Emperor. A 
 triennial catalogue of merits and demerits of all officials in 
 the empire was made out by the Board of Civil Office and 
 submitted to the Emperor. This catalogue was made up from 
 reports, made by all provincial officers on the conduct of those 
 under them, forwarded by the governors. The points were 
 arranged under six heads, diligence, efficiency, superficiality, 
 talents, superannuated and deceased. On this basis the offi- 
 cers were advanced or degraded. Officers were required to 
 accuse themselves, when guilty of crime committed by either 
 themselves or their subordinates, and request punishment. 
 The names and standing of all officers were published quar- 
 terly by permission of the government in the Red Book, in 
 four twelvemo volumes, and officers of the army and Banner- 
 men in two others. This publication was begun about 1580 
 and gives the name, native province, race, title and salary of 
 the officers. The record of most officials is one of ups and 
 downs, very few being able to steadily advance. Except the 
 preferences given to the imperial clan, Chinese officials came 
 up from the great multitude. No matter how humble his 
 birth, any subject was eligible to the highest office under the 
 emperor. Theoretically education was the test of qualifica- 
 tion. Practically the favor of the appointing power was of 
 first importance and personal influence often outweighed merit. 
 The orders of the court were usually transmitted in manu- 
 script. General proclamations were printed on yellow paper 
 in the Manchu and Chinese languages with a border of 
 dragons. Orders and regulations issued by governors and 
 other principal officers to the people of the provinces were 
 also published. Standing laws and local regulations were 
 often carved on tablets of black marble and placed in the 
 streets where all could read them. Commands of the gfov- 
 ernment were usually printed in large characters and copies 
 were posted at the doors of the offices and in public places in 
 the streets, with the seal of the officer authenticating them. 
 Important edicts were also often printed in pamphlet form. 
 
240 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Persons eligible to office were divided into nine Titerary ranks, 
 the lowest including village magistrates, deputy treasurers, 
 jailers, etc. Policemen, local interpreters, clerks and attend- 
 ants were not regarded as of any rank and were mostly resi- 
 dents of the locality where employed. Titular rank was sold 
 by the government, but this did not open the road to official 
 position, though offices were purchased corruptly and in- 
 stances occurred where offices were sold by the government. 
 The principal advantage of the honorary title was that it 
 saved the possessor from the bamboo, where others would 
 suffer. 
 
 Besides the officials holding by appointment under the Em- 
 peror, there were village headmen, chosen by the people them- 
 selves, who had more or less important duties to perform 
 according to circumstances. They decided petty disputes, 
 supervised local police, regulated festivals, markets and 
 streets, collected taxes, etc. They were under surveillance 
 of their supervisors and an appeal lay from the headmen to 
 the district magistrate. Meetings of the headmen of many 
 villages to consult on matters of mutual interest were some- 
 times held and they held something of a check, as representa- 
 tives of the people, on the oppressions and extortions of the 
 higher officials and their menial dependents. The existence 
 of clans, which is most marked in the southern provinces, is 
 a source of much disorder and crime. There are about four 
 hundred clans in the empire, many of which are scattered 
 throughout different parts, thus in effect greatly multiplying 
 the number. The clans are most active and turbulent in the 
 southern provinces, especially Kwang tung and Fukien. By 
 uniting to shield members guilty of crime, great difficulties 
 are often interposed to the administration of justice. False 
 witnesses and sometimes hired substitutes, confessing crime 
 to shield the guilty, are produced and paid by the clan. In 
 some places the clan becomes little more than a nest of bandits 
 and even develops into the terrible Kouan Kouen of whom 
 the Abb Hue says, ''To give and receive wounds with com- 
 posure; to kill others with the most perfect coolness and to 
 have no fear for yourself, this is the sublime ideal of the 
 
CHINA 241 
 
 Kouan Kouen." In the cities the householders on each street 
 are required to unite in poHcing the street and maintaining 
 order, and for this purpose they select a headman who has 
 supervision. The citizens also form voluntary guilds to fur- 
 ther mutual interests, each having its assembly hall, where 
 they assemble for about the same purposes as do European 
 guilds. Popular assemblies are sometimes held on a more 
 comprehensive scale and in Canton there is a building, called 
 the Free Discussion Hall, where political matters are openly 
 discussed and the gatherings often wield great influence. 
 Secret societies, some of them ramifying throughout a large 
 part of the empire, are numerous, though the policy of the 
 government was to suppress them. City charters appear to 
 have been a thing unknown and the j>eople of cities were 
 subject to substantially the same governmental system that 
 prevailed throughout the empire. China is peculiarly free 
 from class distinctions. There is no hereditary aristocracy 
 corresponding to that of Europe, the clan of the Emperor 
 and descendants of Confucius alone receiving substantial 
 recognition. 
 
 Caste in the sense in which it exists in India is unknown. 
 There are prejudices against members of certain aboriginal 
 tribes in the interior and boat people on the coast. Aliens 
 slaves, criminals, executioners, police runners, actors, jug- 
 glers, beggars, vagrants and vile persons, were not eligible 
 for the literary examinations, nor their descendants until for 
 three generations they had followed some useful employment. 
 The democratic part of the system was in the village organi- 
 zation, which was thoroughly so. All citizens were electors 
 and eligible to oflice. The village collectively was responsible 
 for the taxes and the headmen, usually the elders, were 
 generally of high character and worthy of the confidence re- 
 posed in them. These village organizations included con- 
 siderable numbers of people, in some instances several thou- 
 sands. In the election of headmen, the people divided by 
 clans, rather than parties representing different principles, 
 and most of the wrongs attributed to these local governments 
 are chargeable to clan enmity. 
 
242 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Slavery exists in China, but only to a very limited degree 
 as to males, the numbers of whom are so few as to be hardly 
 appreciable. Women are sold, but usually for concubines. 
 Polygamy is allowed, but not much practiced except by the 
 rich. The chief fundamental defect in the organization of 
 Chinese society unquestionably is the low estimation in which 
 women are held and their oppression by the males. The wife 
 is the slave of her husband, with whom she is not permitted to 
 eat, or attend public worship. The birth of a son is followed 
 by great rejoicing but the birth of a daughter is considered a 
 calamity. The girl is the servant of her brothers as well as 
 her parents, and until recent times in obedience to the merci- 
 less demands of fashion, was required at an early age, to 
 endure the barbarous process of foot binding, by which she 
 was rendered a cripple for life. This seems to have been 
 even more the work of the women than of the men, the 
 mothers like those of western lands prizing above all things 
 the appearance which fashion demanded. The respect for 
 parents and for age, so strongly inculcated in all the teachings, 
 tends in some measure to alleviate the condition of women in 
 the closing years of life. The fact, however, is abundantly 
 established that the Chinese, as a nation, deny absolutely the 
 equality of the sexes and remain blind to the blighting influ- 
 ence on society, and on each succeeding generation, which the 
 degradation and ill treatment of mothers have. Though Chi- 
 nese philosophers have perceived and taught the value of home 
 instruction and of the mother's influence on her offspring, they 
 have utterly failed to carry the lesson to its logical conclusion 
 and enjoin such care, education and considerate treatment of 
 the mother as will enable her to properly discharge these 
 duties. Herein lies the greatest defect in the social system of 
 the empire. 
 
 A general survey of the workings of the Chinese govern- 
 ment will show that it drew far less from the people by tax- 
 ation than any other great government, population considered, 
 and the number of oflicials employed was very much less. 
 The complaints of the people were not so much against regu- 
 lar taxation as the extortion of petty oflicials and hangers on 
 
CHINA 243 
 
 of the courts. It was the corruption and extortions of offi- 
 cials high and low that bore heavily on those who found need 
 of resorting to governmental protection or were called on to 
 answer for their doings. 
 
 China is the least military of all the great governments, ex- 
 cept the United States of America. Its standing army in- 
 cludes less than one million men of whom very many are but 
 nominal soldiers. This is less than one out of four hundred 
 of its population. Any first class European power, Great 
 Britain excepted, can muster a larger force than this of 
 trained soldiers, though not all in actual service. Chinese 
 soldiers are generally regarded with contempt by Europeans 
 and while, as individuals, the Chinese frequently exhibit as 
 much physical courage as Europeans, their character, habits 
 and traditions are essentially unmilitary. 
 
 In its government we find that the primary structure was 
 democratic in character, resembling the tribal organizations 
 of primitive people, which usually accord sojne degree of dis- 
 tinction and respect to the elders. At the head of the vast 
 official machine was the Emperor, theoretically the great 
 patriarch of the whole, vested with full power, which he was 
 expected to exercise as a father, according to established prin- 
 ciples and customs and for the good of his immense family. 
 The theory of the government did not admit of anything like 
 a clear separation of it into legislative, executive and judicial 
 departments, nevertheless these functions were in practice 
 separately exercised to a considereble extent. The principles 
 declared in the classical books require that the. government be 
 rather one of laws than of the arbitrary will of men, and the 
 Book of Rites indicates the relations of the various grades of 
 officials to each other and to the people. However arbitrarily 
 they may have exercised their powers in practice, the army 
 of officials who administered the government had no com- 
 mission to rule according to their pleasure. Their powers 
 and duties were well marked out and a well devised and con- 
 stant system of surveillance and espionage to keep them to 
 their duties was maintained. 
 
 China has long had its code of written laws termed the 
 
244 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 penal code, though it relates to what are called civil cases with 
 us as well as to criminal ones. An extended summary of this 
 code as it existed a century ago, before western influences had 
 been sufficient to produce any material effect on Chinese senti- 
 ments, will be found in the Appendix. 
 
 Steamboats, railroads, and telegraphs have reduced the dis- 
 tance between China and the west; other western inventions 
 and scientific teachings have introduced new ideas into the 
 ancient realm; battleships and great guns have demonstrated 
 the destructive forces of the "foreign devils," and China can 
 no longer be a world to itself. The new learning of the west 
 has been acquired by many Chinese scholars, and books and 
 periodicals of all kinds have disseminated it throughout the 
 empire. Though Chinese statesmen and merchants came in 
 contact with foreign people ever since the opening of trade 
 between Europe and India and China but little effect on the 
 multitude was produced until very recent times. Kwang-su, 
 an infant, ascended the throne in January, 1875 with the 
 dowager empresses Tsz'e Hsi and Tsz'e An as guardians. 
 Tsz'e An died in 1881 and from that time till 1898 the sover- 
 eign power was wielded by Tsz'e Hsi. Kwang-su then as- 
 sumed authority for a brief period but was deposed by the 
 dowager who resumed authority. The war with Japan, the 
 acquisition of the Philippine Islands by the United States, the 
 construction of the Siberian railway by Russia, the boxer up- 
 rising in 1900 and the intervention of the foreign powers and 
 the war between Japan and Russia, combined with increasing 
 knowledge of western arts, inventions and ideas to produce 
 a public sentiment among the educated classes in favor of 
 sweeping reforms in governmental methods. In 1905 an Im- 
 perial Commission to study the administrative systems of 
 other countries was appointed with a view to the possible 
 establishment of representative government in China. This 
 Commission visited Japan, America and Europe. On Sep- 
 tember I, 1906 an edict for the future establishment of a 
 parliamentary form of government at no fixed date was 
 promulgated. August 27, 1908 a decree issued in the name 
 of Kwang-su announced the convocation of a parliament in 
 
CHINA 245 
 
 the ninth year from that date. Reform of the educational 
 system to inchide modern sciences as well as the Chinese 
 classics began in 1902. Kwang-su died in November, 1908 
 and his death was followed by that of the dowager empress 
 on the fifteenth of that month. Pu-Yi, the infant nephew of 
 Kwang-su, succeeded to the throne. On October 14, 1909, 
 Provincial Assemblies elected in the provinces met. In Feb- 
 ruary, 1910 a decree approving schemes of the Commission 
 for constitutional reforms with local representative govern- 
 ments in the prefectures and departments and reforms of the 
 judiciary was promulgated. The appointment in May 191 1 
 of an Executive Council composed of eight royal princes, 
 four Manchus and only five Chinese, and the assertion by the 
 regent that "the right to name ofBcials belongs to the Emperor 
 alone" and the manifestation of reactionary tendencies by the 
 court, precipitated a revolution which resulted in the abdica- 
 tion of the little Pu-Yi and the dowager Empress on Febru- 
 ary 12, 1912 and the establishment of the Republic of China. 
 While the change from the theory of an absolute paternal 
 despotism to a republic seems so very great, China was not 
 wholly unprepared for it. The indispensable prerequisite of 
 a written language read and comprehended by a large part 
 of the people, coupled with general education in the principles 
 of government as declared in the classical books and long 
 familiarity with local self-government in the villages and com- 
 munities, and the meetings of the head men of a number of 
 villages for consultation and concerted action had prepared 
 the people in some measure for republican institutions. 
 
 Nothing is more common than to regard with contempt 
 that which is not understood. Europeans and Americans gen- 
 erally look upon Chinese civilization as containing nothing 
 worthy of adoption or even of serious consideration. The 
 Chinese are now manifesting a willingness to learn from the 
 western barbarians, whom they so long despised. 
 
 The prominent, glaring faults of the Chinese are their 
 treatment of women, slavery, polygamy, binding the feet, 
 torture to extort confessions of crime, and cruel punishments. 
 These are so repugnant to Europeans that it is often assumed 
 
246 EVO'LUTION OF GOVERNMENTS AND LAWS 
 
 that not great virtues can be associated with conduct so 
 vicious. 
 
 Europe viewed from the standpoint of China, exhibits many 
 comparatively petty states, constantly burdened with the sup- 
 port of great armies and often warring with each other, speak- 
 ing different languages as do the inferior tribes within the 
 Chinese empire. They are shocked at the disrespect exhibited 
 toward parents in America, even more than in Europe; at 
 the want of respect for one another indicated by the absence 
 of ceremonious greetings, at the absurd fashions in clothing, 
 the absurd burdens of woolens and linens in summer worn by 
 the men, and the indecent and harmful exposure of their per- 
 sons by the women at great functions in winter ; at the multi- 
 tudes of idle rich and idle poor found everywhere; at the in- 
 justice and bad policy of laws which fix the fines of rich and 
 poor at the same sum of money ; at the want of discrimination 
 in punishments and the actual exemption of the nobility in Eu- 
 rope and the very rich in America from accountability for their 
 conduct, and many other European and American peculiarities. 
 
 To the American or European who considers the Chinese 
 Penal Code, probably the first matter that will challenge his 
 attention is the want of a civil code. Europeans and Ameri- 
 cans from the earliest historical times have classified their 
 causes in court as civil and criminal, and this division is re- 
 garded as natural and indispensable. Is it really either natural 
 or indispensable? The fundamental idea of the Chinese was 
 that the Emperor occupied the relation of a father to all the 
 people; that the duty rested on him to restrain all his multi- 
 tude of children from doing wrong, and also to compel them 
 to do right. How should this be done? As a father would 
 enforce obedience and right conduct by his children^ For 
 petty offences and omissions of duty a mild whipping: for 
 those more serious more strokes. When whipping appeared 
 inadequate, banishment, and for the most heinous crimes, 
 death. The Chinese deem punishment due to him who de- 
 frauds his neighbor as well as to him who steals from him; 
 to him who unlawfully detains another's property as well as 
 to him who stealthily takes it. To fail to pay a debt or per- 
 
CHINA 247 
 
 form a contract or duty is a misdeed to be corrected with the 
 bamboo. Misdeeds are graded and classified in the Penal 
 Code of China far more logically and naturally than in Europe 
 or America. The turpitude of the misdeed depends on the 
 value of the property of another which has been unlawfully 
 taken, retained or misappropriated; the nature of the injury 
 to the person; the intent of the wrongdoer, and the relation- 
 ship of the parties. In Europe and America an arbitrary line 
 It drawn between crimes and civil wrongs. Many frauds and 
 misdeeds of the greatest magnitude are not classed as crimes, 
 and some really meritorious acts are punished. Larceny and 
 embezzlement, which, in the nature of things have many 
 grades of moral turpitude, are ordinarily divided arbitrarily 
 into two classes based on value or kind of property. The 
 Chinese make a much more logical classification and punish 
 petty pilfering with but a few blows, and larceny of a large 
 sum with death. To steal food to satisfy hunger is but a 
 slight fault, to deliberately take a large sum of money or 
 property of great value from another exhibits moral turpitude 
 and is punished accordingly. It is regarded as a much more 
 serious offense for a son to strike his father or mother than 
 a stranger. It is a less offense for a member of a family to 
 appropriate a part of the property of another member of it to 
 his use than to take from a stranger. In dealing with prin- 
 cipals and accessories in crime, the one who plans and directs 
 is regarded as the principal, whether he actually takes part in 
 the perpetration of the offense or not. This also is more logi- 
 cal than the rules of the common law of England and the 
 United States. 
 
 In the infliction of punishment regard is had to the ability 
 of the culprit to endure it. Both the old and the young are 
 treated more leniently than the strong mature men. Women 
 are allowed special consideration in this particular and retain 
 the upper garment while a man is required to strip. Where 
 commutation is allowed in lieu of the bamboo, the amount of 
 the payment depends on the ability of the culprit to pay, and 
 the rich and powerful must pay ten tiYnes as much as the 
 poor and humble. When it is considered that in the west the 
 
248 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 rich nearly always escape, and when convicted and actually 
 punished are treated with far more consideration than the 
 poor, the superiority of the Chinese code in this particular 
 appears very marked. 
 
 While the laws with reference to marriage and divorce dj 
 not commend themselves to the Western mind, in one par- 
 ticular the divorce law is superior to ours. It recognizes mis- 
 conduct as a ground for a divorce, but it also recognizes good 
 conduct as a defence. Clearly, good conduct should be 
 weighed as well as bad. Western people are disposed to 
 ridicule Chinese regulations with reference to mourning, yet 
 these accord perfectly with the central idea of paternal author- 
 ity on which both the governmental and domestic systems 
 were based. Doubtless the profound respect for parents man- 
 ifested by the Chinese is largely due to the law relating to 
 mourning, which makes the loss of father or mother a calam- 
 ity, not merely in and of itself, but also by reason of the legal 
 consequences which follow. In the West the heir of a great 
 estate is far too often forgetful of his loss and over conscious 
 of his gain. 
 
 In no other country is industry and thrift so general, and 
 nowhere else is there so small a percentage of idlers living 
 on the industry of others. This also is due in some measure 
 at least to the policy of the law. Speculators are not allowed 
 to hold great tracts of land without use. The owner must 
 make his land productive and the village authorities must see 
 that he does so. 
 
 Acts of Parliament covering limited fields and the recog- 
 nized methods of carrying on public affairs constitute the so- 
 called British constitution. In China the classical books de- 
 fined the relations of the people and their rulers, and the offi- 
 cial system through which the people were governed, with its 
 explicit rules and the elaborate penal code, constituted their 
 constitution. It is true that they had not the theoretical sepa- 
 ration of executive, legislative and judicial departments, but 
 on the other hand they had a more complete system of chang- 
 ing officials from pl^ce to place and having each watch and 
 report on the conduct of others than can be found in any 
 other country. 
 
CHINA 249 
 
 Though classed as a despotism by Europeans, China had 
 encouraged learning through many centuries, while European 
 kings discouraged it. In theory education and merit were 
 the sole means of gaining official station and of retaining it 
 when once acquired. Knowledge of the laws was exacted of 
 all officials. Those who wielded the powers of government 
 were not above the law, but themselves liable to punishment 
 for its violation. A Western judge is not liable to punishment 
 for a wrong judgment but in China all the court officials as 
 well as the judge were subject to punishment for disregard- 
 ing the law. 
 
 Until very recent times the rulers of Europe refused to give 
 information to their subjects of the doings at their courts. 
 The Emperors of China have long made public their official 
 acts, and through the Peking Gazette all might keep informed 
 of the acts and orders of the government. 
 
 The people of China have from a very early day enjoyed, 
 not only a large measure of liberty of individual action, but 
 of association and combination as well. The Empire includes 
 all varieties of climate, soil, and productions. Perpetual 
 w^inter reigns on the peaks of the Thian Shan and Kuen Lun, 
 while the most southern provinces extend into the tropics. 
 The people have never relied on any other country for the 
 necessaries or even luxuries of life. Foreign commerce has 
 always been limited, yet the internal commerce of China is 
 and long has been second to that of no country in the world. 
 It has never been the policy of the rulers of China to inter- 
 fere with the useful activities of the people, nor has the gov- 
 ernment for any long period attempted to supervise or direct 
 them. Industry, thrift and the performance of obligations 
 have been enjoined and enforced. The average Chinaman, 
 whether at home or abroad, looks to China as the only really 
 civilized country in the world, and the best place on Earth in 
 which to live. Is it quite certain that he is altogether wrong? 
 
 It is easy to point out moral blemishes in the Chinese. It 
 is equally easy to see them in Europeans and Americans. It 
 is not easy to judge justly of the relative merits and demerits 
 of the different people or of their institutions and laws. 
 
250 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 China combined democratic local self-government under 
 written laws with an autocratic central power acting through 
 a most carefully devised arrangement of bureaus and depart- 
 ments designed to afford mutual checks on each other. Under 
 this system one-fourth of all the people on the globe lived. 
 They have known less of the horrors of war than any other 
 equal number of people on Earth no matter how selected. 
 They are subject to less annoying restrictions in the transac- 
 tion of their daily business than the people of most states of 
 Europe. The morality inculcated by their classical books and 
 the Buddhist teachers is as pure and lofty as that found in 
 the teachings followed by the people of the West. 
 
 As the study of a foreign language is one of the best means 
 for learning ones mother tongue, so the study of the code of 
 laws most dissimilar to that of our own country is an excellent 
 method of finding out the defects and absurdities of the sys- 
 tem to which the student is accustomed. The extreme dis- 
 similarity of the institutions of China and those of Europe 
 and America give especial value to the study of its ancient 
 moral teachings, laws, customs and government. 
 
 Authorities 
 
 Williams: The Middle Kingdom. 
 Langdon: China and the Chinese. 
 Wilson : China. 
 Gray : China. 
 
 Hue: Travels in the Chinese Empire. 
 Murray: Travels of Marco Polo. 
 Encyclopaedia Britannica. 
 Staunton: Penal Code of China. 
 
CHAPTER XI 
 
 Japan 
 
 So far as the history of Japan has come down to us it is 
 the history of a single dynasty. No other country is now 
 ruled by a family so long in power or to speak more accurately, 
 theoretically in power. Starting with Jimmu Tenno, whose 
 reign commenced about 660 B.C., the mikados have traced 
 their descent from him and have been recognized as the sover- 
 eigns of the empire. That there were people on the island 
 prior to his time and that many events of great historic in- 
 terest transpired long before, does not admit of doubt, but, 
 as the Japanese had no written records till the sixth century 
 of our era, even the history of the early rulers is founded on 
 tradition and starts with the supernatural and mythical. Ac- 
 cording to the legend, Ningo-no-Mikoto, grandson of the sun 
 goddess Ameterasu-o-mi-Kami, settled in the south part of 
 the island of Kiushiu. His son, Jimmu Tenno, proceeded 
 northward and landed on the principal island from the Bay of 
 Ozaka. Thence he advanced into the country, subduing the 
 neighboring provinces, and established his residence near the 
 town of Nara in the year 660 B.C. It is surmized that the 
 Ainos, now found only in the extreme north of the empire, 
 were the aborigines, and that Jimmu Tenno was the leader 
 of a superior race, which invaded the country from the south. 
 The character of the inhabitants of the island at the date of 
 his advent must, however, remain a matter of conjecture 
 rather than of established fact until some record not yet made 
 public is discovered. 
 
 The fundamental theory of the government, promulgated 
 and maintained through all the generations, is that of a ruler 
 divinely descended and commissioned to govern the people 
 according to his sovereign will. Jimmu Tenno is credited with 
 introducing the culture of cereals, hemp, garlic and ginger. 
 
 25; I 
 
252 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 His early successors would seem to have had exceptionally 
 long reigns, as the tenth Mikado, Sujin Tenno, ruled from 
 97 to 30 B.C. This would allow more than an average of 
 sixty years to each mikado. Though some progress was made 
 in agriculture and the authority of the Mikado was so extended 
 as to extort tribute from Corea in 32 B.C., a low state of 
 civilization may be inferred from the existence of a custom by 
 which on the death of the Mikado or one of his near relatives 
 his servants were buried alive with him. A law prohibiting 
 this custom was promulgated in the year A.D. 2. Such a 
 custom implies the prevalence of the most unmitigated slavery 
 and abject submission to despotic power. It is evident that 
 the dominion of the early rulers did not extend over all the 
 islands, for not until the reign of Kuko Tenno, A.D. 71 to 
 130, was the great Kuwanto subdued, and an invasion from 
 Kiushiu caused the subjugation of that island, which, though 
 the landing place of the father of the first Mikado, would seem 
 never to have been subject to his immediate successors. 
 Though Japanese writers seem to accept the accounts of the 
 administrations of the early rulers as historic facts, there are 
 so many elements of improbability connected with them that 
 they hardly afford a safe basis for deductions. Little is known 
 of the number of people on the islands or their condition prior 
 to the introduction of letters. It seems reasonably certain 
 however, that the early mikados ruled over a rather sparsely 
 settled country, and that their dominions were confined to a 
 portion only of the islands. Despotism of the most absolute 
 character is the earliest form of government of which an 
 account is preserved. Though the Japanese maintain that the 
 abolition of the shogunate and the restoration of power to 
 the Mikado but reinstate the reigning house in the authority 
 which of right it always had, the actual power has in the 
 course of centuries not merely passed into other hands, who 
 have administered it for long periods, but the system of gov- 
 ernment and the organization of society have undergone radi- 
 cal changes. In studying these changes let us bear in mind 
 that we are dealing with a people whose homogenity has con- 
 tinued without material change for more than 2,000 years. 
 
JAPAN 253 
 
 There was not at any time after Jimmu an invading conqueror, 
 nor is any account preserved of the influx of a servile race. 
 The present population of the islands have descended from its 
 early inhabitants with but slight and occasional intermixture 
 of foreign blood, never enough to materially affect the great 
 mass. Whence the early ideas of government were derived is 
 unimportant. They were essentially despotic. 
 
 In 202 the Empress Jingu Kogo invaded Corea and placed 
 it under tribute. This was followed by an embassy from China 
 and the introduction into Japan of the teachings of Buddha 
 and Confucius, and the language, literature and laws of the 
 Chinese. It was several centuries however before this pro- 
 duced marked affect, for it is said that the introduction of 
 Buddhism is generally regarded as dating from 522, and that 
 the Japanese had no written language till that century. The 
 king of Kudara in Corea sent the Mikado bonzes, statues of 
 Buddha, prayer books and other religious paraphernalia. As 
 he still adhered to the Shinto religion he asked for apothe- 
 caries, soothsayers and almanac makers instead, for which he 
 exchanged munitions of war. 
 
 About the year 600 the Empress Suiko introduced into her 
 court the manners of the Chinese, with whom at that time 
 there was considerable intercourse. How great a change this 
 effected cannot be definitely stated, but it did not materially 
 alter the form or character of the government. During her 
 reign the Buddhist religion gained adherents rapidly, and its 
 influence tended to improve society and bring about peaceful 
 conditions. The early practice of burying living slaves and 
 wives with the bodies of their deceased lords seems to have 
 continued, notwithstanding the early prohibition of it, until 
 the reign of the thirtieth Mikado, when a strict injunction 
 against it was issued. 
 
 In the time of the thirty-eighth emperor, the three chief 
 offices of Sa-Dai-Jin, U -Dai- J in and Nai-Dai-Jin were created. 
 Tenji also established the office of Dai-Jo-Dai-Jin (great min- 
 ister of the great government), and conferred it on his eldest 
 son. His friend Nakatomi he made Nai-Dai-Jin and allowed 
 him to adopt the family name of Fujiwara. This family 
 
254 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 played a most important part in the rulership of the empire 
 for several centuries. Prior to this time, except during periods 
 of internal strife involving the succession, the government was 
 administered directly by the Mikado. He led the armies of 
 peasant soldiers, v^ho disbanded and returned to their peace- 
 ful callings when war was over. On the introduction of 
 Chinese customs a court nobility grew up around the mikado, 
 which in time deprived him of all real authority. In the early 
 centuries and down to the time of Tenji Tenno in the last 
 half of the sixth century there were no considerable cities, 
 and the Mikados shifted their residence though always within 
 the Gakmai or home province. 
 
 Kuwammu Tenno, fiftieth Mikado, established his residence 
 at Kioto, which remained the capitol of the empire till recent 
 times. He caused many improvements to be made, and con- 
 structed canals and dams to regulate the water courses, built 
 temples and palaces, established schools and encouraged the 
 Buddhist teachers. The relation of the Fujiwara to the 
 Mikado and the important special privileges they enjoyed af- 
 forded them the means of greatly increasing their power. The 
 office of Kuwaynbakii, or regent, was made hereditary in the 
 Fujiwaras, and from the daughters of the house the Mikados 
 took their wives. With the advent of weak princes early in 
 the ninth century the practice commenced of inducing or forc- 
 ing the Mikado to abdicate in favor of an infant member of 
 the family and thus permit a Fujiwara to rule as regent. 
 This was carried to such an extreme that all real power was 
 taken from the Mikados and exercised by the regents. The 
 power of the Fujiwaras at court continued till the close of the 
 eleventh century. 
 
 The growing influence and importance of the noble houses 
 of the Taira and Minamoto were contemporaneous with in- 
 creasing military tendencies. Members of these families were 
 at the head of the armies, resisting invasions and suppressing 
 insurrections. The Fujiwaras had ruled through court in- 
 trigues. The Taira and Minamoto hewed their way with 
 the sword. With the beginning of the twelfth century feud- 
 alism rapidly developed. The power of the central despotism 
 
JAPAN 255 
 
 had vanished, and the real force of government was wielded 
 by lords who directed the arms of the Samurai in the prov- 
 inces. So marked was the tendency to militarism that evei^ 
 the priests of that most peaceful of all religions, Buddhism, 
 appeared at the capitol in arms to enforce their demands. The 
 struggle for political supremacy, carried on by the rival houses 
 of Taira and Minamoto, devastated the country for centuries 
 and was more enduring than any known war for the succes- 
 sion to a throne. Theoretically the right of the Mikado to 
 rule was always recognized. By the success of one or the 
 other faction no right was estabHshed, no claim of sovereignty 
 denied. The struggle was for actual dominion, to be exer- 
 cised in the name of the Mikado, but in spite of his feeble 
 will. The successes of the Minamoto and their allies under 
 Yoritomo near the close of the twelfth century resulted in his 
 taking the title and office of Sei-i Shogun, which from that 
 time became hereditary in the Minamoto family, and its pos- 
 sessor wielded the real power of the government. Yoritomo 
 established a council of state, who were distributed over the 
 provinces to share as military officers the power of the civil 
 governors. He systematized the feudal system and is called 
 its founder. He made his headquarters at Kama Kura near 
 the site of modern Yokohama, where he died in 1199. Yori- 
 tomo is credited with improving the administration by 
 establishing a court of justice, levying a uniform tax and 
 forbidding priests to be warriors. Though wielding the actual 
 power, he always went through the form of obtaining the 
 sanction of the Mikado. 
 
 On the death of Yoritomo his son Yoriiye succeeded as 
 Shogun, but being weak and dissolute, he at once fell under 
 the influence of his mother's family. At her instance a family 
 council with her father, Ho jo Tokimasa, at the head was 
 formed. This council assumed the real power and admin- 
 istered the government in the name of the Shogun and Mi- 
 kado, who were allowed to live in idleness and dissipation. 
 The regency of the house of Hojo continued till 1334. The 
 shikken, as the head of the house was styled, took care that the 
 shogunate should never pass into strong hands but should 
 
256 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 always be held by an infant or a weakling. Though the 
 Hojos are given a hard name in history, under their rule 
 the country was generally at peace and growing in prosperity. 
 The intrigues and murders at court were perhaps of less con- 
 sequence than the increased security of the common people, 
 but this security could hardly have been of an exalted char- 
 acter under the growing power of the military class. 
 
 While incursions into Japan from Corea are recorded, none 
 of them were in such force as to seriously threaten the inde- 
 pendence of the empire. In 1275 the forces of the great 
 Kublai Khan took possession of Tsushima and Iki and at- 
 tempted to land in Kiushiu, but were driven off. Again in 
 1 28 1 a far larger army was landed in Kuishiu, but -the Japa- 
 nese under Ho jo Tokimmie met and routed them, and their 
 fleet was destroyed by a typhoon. To one familiar with the 
 struggle for supreme power in western nations it seems ex- 
 ceeding strange that through all the centuries care was always 
 taken to preserve the succession and nominal rule of the 
 Mikado, and that after the power of the Shogun was estab- 
 lished the same system was followed in reference to his office. 
 The overthrow of the Hojo in 1134 was followed by an at- 
 tempt on the part of the Mikado, Go-Daigo, to resume the 
 active exercise of power and by the Ashikaga to rule as 
 Shogun. In order to accomplish this an attempt to depose the 
 Mikado by a forced abdication in favor of the Ashikaga's 
 choice was made and resulted in a long internal struggle, 
 each side drawing to its support the retainers of its partisans. 
 For fifty-six years there were two rival dynasties, one of the 
 north and the other of the south. During the wars of this 
 period the country was devastated, and the condition of the 
 people rendered correspondingly miserable. Piracy developed 
 on the coast, and Japanese corsairs ravaged the coasts of China 
 and Corea. After the settlements of their differences by 
 agreement of the rival claimants in 1392 the country enjoyed 
 a brief respite, but the spirit of faction and the love of strife 
 attending the increase of the local and personal power of the 
 country nobility soon plunged the country into civil war again. 
 The samurai followed the daimio to whom they were at- 
 
JAPAN 257 
 
 tached, no matter what the nature of the quarrel. The condi- 
 tion of Japan seems to have been essentially the same as that 
 of Europe during feudal times, when each local ruler fought 
 his equals and murdered and pillaged the defenceless. The 
 priests contributed nothing for the betterment of conditions, 
 but by their intrigues and licentiousness aggravated the miser- 
 ies of the times. Kioto cased to be a place of safety, and the 
 old court nobility — the KugS — were forced to find shelter in 
 the castles of the Daimios in the provinces. 
 
 The Shogunate of the Ashikaga terminated in 1573, and a 
 vacancy ensued until 1603, when Tokugawa lyeyasu was in- 
 vested with the office. The first European to reach Japan 
 was the Portugese Mendez Pinto in 1542. He introduced fire- 
 arms and the Christian religion. With the firearms they 
 were 'greatly pleased, but the progress of Christianity was 
 slow and followed by bitter persecution. The religion of the 
 west cannot be said to have ever exercised a marked influence 
 on Japanese society, and the wonderful awakening of recent 
 times has been, not to the religion, but to the arts and civiliza- 
 tion of the west. 
 
 After the conclusion at Sekigahara of the bloody wars 
 which resulted in the elevation of lyeyasu to the supreme 
 power as Shogun, he proceeded to complete the system of 
 feudal tenures and to parcel out the provinces among his sup- 
 porters. He also took measures to eradicate Christianity. 
 Under his administration the feudal system reached its height 
 with the Shogun as its head, instead of the Mikado. His great 
 success in attaining his two main objects, the perpetuation of 
 the supreme power in his family and the peace of the country, 
 is attested by the fact that his successors ruled substantially 
 in peace for the ensuing 268 years. 
 
 In Japan, as in feudal Europe, the real power of the no- 
 bility was based on military organization and a theory of 
 title to land. Without attempting any radical change of 
 theory, lyeyasu moulded the system to secure his own power. 
 There were thirty-six leading families besides his own who 
 took the name of Matsiidoira and ninety of the Koknshiu, 
 smaller landlords, whose revenue ranged from 10,000 to 
 
258 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 100,000 koku of rice per year. These families held theoretic- 
 ally as feudatories under the Mikado, but actually in their own 
 right. To secure his own power lyeyasu seized the lands of 
 his enemies by force and parcelled them out among his own 
 retainers. The system of sub-infeudation under the great 
 daimios prevailed in Japan as well as in Europe. A peculi- 
 arity of the Japanese system was that the estate of a daimio 
 could neither be enlarged or diminished in any way without 
 the express consent of the Shogun. lyeyasu's retainers, called 
 hatamotos or flag-supporters, ranked below the daimios, and 
 had each a small train of from three to thirty retainers. They 
 numbered about 80,000 in the empire and constituted the mili- 
 tary basis of his power by which he held the Mikado practi- 
 cally as a captive, though nominally his sovereign. Below 
 these were the private soldiers, also belonging to the Samurai 
 or military class and under the command of the Shogun. 
 lyeyasu observed the policy of separating the great daimios, 
 who had been or were suspected of being hostile to him, by 
 assigning them disconnected tracts of land between which he 
 placed his own tried vassals. The Daimios and Samurai, like 
 the feudal lords of Europe, despised work and all who labored. 
 Many of them were dissolute and given to brawling and 
 robbery. 
 
 The head of the family held not only the title to the land 
 but had full power over all its members. The wife belonged 
 to the family of her husband. The practice of adoption was 
 common, when there was danger of a failure of male heirs to 
 fill the military tenancy, in which case the land would escheat 
 to the lord. As in Europe the lords allowed the tillers of 
 the soil only a meager subsistence. The idle, criminal soldiery 
 took the lion's share and gave no return for it. The essential 
 elements of the governmental system were ownership and 
 hereditary tenure of the land enforced by military organiza- 
 tion. In lyeyasu's time the Mikado was unable to direct the 
 military force and therefore shorn of actual power, though 
 always recognized as the rightful ruler and the source of all 
 titles of honor, which men prized as highly in Japan as any- 
 where in Europe. The rule of the Tokugawa from the time 
 
JAPAN « 259 
 
 of lyeyasu to 1854 was distinguished by a settled policy of 
 isolation from the outside world and military rulership at 
 home. The feudal lords with the Shogwi at their head and 
 the Samurai at their command maintained peace at home, 
 while population multiplied. The intercourse with the Dutch, 
 the only European nation favored with a commercial treaty, 
 was carried on under the most humiliating restrictions and 
 confined to the places designated by the government. Inter- 
 course with China seems to have been more favored. Though 
 the military class was strongly fortified in the possession of 
 all the advantages of the Japanese system, the agitation which 
 resulted in the wonderful modern awakening to new ideas 
 came from the scholars and thinkers among the nobility and 
 Samurai. The extreme poverty and ignorance of the Hinin — 
 common people — afforded them no opportunity for education, 
 interchange of thought, or combination. The nobility and 
 Samurai during the centuries of peace became more students 
 than warriors, and their researches into the early history and 
 religion of the country resulted in the rapid development of a 
 sentiment in favor of the abolition of the shogunate and a 
 return to the ancient form of government with the Mikado as 
 the real head. 
 
 The advent of admiral Perry with a demand for a treaty 
 of commerce with the United States in 1854 resulted in open- 
 ing new ports for trade by the Shogun. This was quickly 
 followed by treaties with other governments. The opponents 
 of the Bakufu, or Shogun government, violently opposed the 
 new treaties and used this action of the government as an 
 argument in favor of the overthrow of the power of the 
 Shogun and restoration of the Mikado to his ancient auth- 
 ority. Though apparently reactionary in these teachings and 
 purposes, they have been real leaders in the wonderful awaken- 
 ing which has followed. Not only has the Mikado been re- 
 stored to his ancient authority, but he has been far more 
 active in promoting intercourse with the outside world and 
 causing the youth of Japan to be instructed in the learning 
 of the west than the Bakufu had been. As a result of the 
 destruction of the power of the Shogun the whole system of 
 
26o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 which he was a representative, and which held such complete 
 dominion for two centuries and a half, has been swept away 
 and a reconstruction of the social system has followed. The 
 power of the great Daimios, amounting almost to sovereignty 
 in their provinces, has been completely broken, and the mili- 
 tary order has been abolished. At the time of this revolution 
 the whole population numbered about 34,000,000, of whom 
 about 2,000,000 belonged to the Samurai. At the head of the 
 nobility stood the Shogtin with a large army of retainers and 
 great estates. Next came the DaimioSj great landowners, 
 with their military feudatories. Of Daimios in 1862 there 
 were 255, classified as follows, three Sanke, descended from 
 the three youngest sons of lyeyasu, on whom he conferred 
 great fiefs. Next thirty-six Kokushiu then seventy-five To- 
 zama and lastly 141 Fudai. These were ranked according to 
 their revenues measured in Koku of rice, a measure equal to 
 a trifle less than five bushels. The revenues of the different 
 Daimios ranged from not less than 10,000 to more than 
 1,000,000 Koku of rice. Next came the Hatamoto, immediate 
 vassals of the Shogun, with incomes ranging from 500 to 
 9,999 Koku, having from three to thirty vassals each and 
 filling many offices of state. They numbered about 80,000 
 families. Then the Gokenin. The Samurai were exempt 
 from taxes and privileged to wear swords. The common 
 people were divided into Hiakusho, peasants, Shokonin — '■ 
 handcrafts men — and Akindo — shopkeepers. Outside and 
 still below these were the Etas (unclean) and Hinin — paupers. 
 The above classification does not include the Alikado and the 
 Kuge, or old court nobility, higher in rank but wanting in 
 actual power and revenue. Of the Kugc 155 families were 
 recognized. Though regarded as superior in rank even to 
 the Shogun, under the feudal system they lost both their 
 incomes and estates, and at the time of the revolution many 
 of them were abjectly poor. 
 
 After the fall of the Shogunate the Daimios, partly of their 
 own accord and partly .on compulsion, surrendered their 
 authority to the Mikado. They were mostly retained as 
 governors for a brief period, but the old provinces were soon 
 
JAPAN 261 
 
 broken up and divided into Ken, governmental districts. On 
 giving up their possessions the Daimios and Saniiirai were to 
 receive one-tenth the revenue, and were reHeved of the sup- 
 port of their Samurai and Yashiki with which they had before 
 been burdened. The Samurai were first excused from wear- 
 ing swords and afterward forbidden to wear them. Their in- 
 comes were greatly reduced and they suffered most of any 
 class from the change. Society then became divided and 
 classified as follows: 
 
 1. The Mikado. 
 
 2. The imperial family. 
 
 3. The Kuwa Zoku — the nobility including both former 
 Kuge and Daimios. 
 
 4. Shikoku, respectable families, old Samurai. 
 
 5. Common people. 
 
 The government after the restoration was in its principles 
 essentially the ancient one, with the power theoretically in the 
 Mikado but actually exercised of necessity through the instru- 
 mentality of ministers and bureaus. The great council of 
 state consisted of three ministers, at whose sitting the Mikado 
 presided, and this was the supreme legislative and adminis- 
 trative authority. 
 
 Ten departments of government were established, over 
 each of which a minister presided, namely. Foreign Affairs, In- 
 terior, Finance, War, Marine, Education, Worship (afterward 
 abolished). Public Works, Justice and Imperial Household. 
 The country was divided into three Fu — chief towns — seventy- 
 two Ken — districts — A Han — the Riukiu Islands — and the 
 colony of Yezo. Over each Ken there is a governor. 
 
 The restoration of the Mikado was soon followed by a 
 demand for popular representation in the government and a 
 constitution limiting the powers of the various departments. 
 In 1878 provision was made for local assemblies in the prov- 
 inces. The qualifications for electors were that they should 
 be males of the age of twenty years and pay a land tax of 
 five dollars — voting to be by ballot. These assemblies proved 
 so satisfactory that on February 11, 1889 the Mikado promul- 
 
2'^2 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 gated a constitution to take effect the following year on the 
 convening of the Diet for which it provided. 
 
 The most important provisions of the constitution are as 
 follows : 
 
 "The Empire of Japan shall be reigned over and governed 
 by a line of Emperors unbroken for ages eternal." 
 
 The succession shall be to imperial male descendants ac- 
 cording to the imperial house law. 
 
 The emperor exercises legislative power with the concur- 
 rence of the Imperial Diet, which he convenes and dissolves. 
 In cases of urgency, when the Diet is not in session, Imperial 
 ordinances may be promulgated to have effect until the next 
 session of the Diet. 
 
 The emperor determines the organization of the adminis- 
 tration, appoints and removes civil and military officers and 
 fixes their salaries. He commands the army and navy, de- 
 clares war, makes peace and concludes treaties. He confers 
 titles, ranks and marks of honor, grants pardons and com- 
 mutes punishments. 
 
 The second chapter provides that the conditions necessary 
 for being a Japanese subject shall be determined by law, that 
 subjects may be appointed to civil and military offices equally, 
 are amenable to service in the army and navy, are at liberty 
 to change their abode within legal limits, shall not be ar- 
 rested, detained, tried or punished unless according to law by 
 judges determined by law, that houses shall not be entered or 
 searched without consent except in cases provided by law, 
 that the rights of property of Japanese subjects shall be in- 
 violate and that within limits not prejudicial to peace and 
 order they shall enjoy freedom of religious belief, that within 
 limits of law they shall enjoy freedom of speech, press and 
 public meetings. All these provisions apply to the army and 
 navy, except as modified by the laws and rules governing them. 
 
 The Imperial Diet established by the constitution consists of 
 an upper and lower house. The House of Peers is composed 
 of members of the Imperial family, of the orders of nobility 
 and persons nominated thereto by the emperor. The House 
 of Representatives is composed of members elected by the 
 
JAPAN 263 
 
 people according to law. Every law requires the consent of 
 the Imperial Diet. 
 
 Proposed laws may be initiated by the Emperor or either 
 house. The Diet shall be convened every year and sessions 
 shall last three months, but may be prolonged by Imperial 
 order, and may be convoked in extra session by Imperial 
 order. Sessions of both houses shall begin and end together. 
 When the House is dissolved the peers must be prorogued. 
 After dissolution of the House of Representatives a new 
 House must be convoked within five months. No debate or 
 vote can be had in either house unless one third of all the 
 members are present, and a majority decides. Deliberations 
 must be public, unless secret sessions are demanded by the 
 Government. Each house may enact rules for its government, 
 and members shall not be held to answer elsewhere for expres- 
 sions or votes given in the House. During a session members 
 are privileged from arrest, except for flagrant offenses, un- 
 less with the consent of the House. 
 
 The Ministers of State and Delegates of the Governnient 
 may at any time take seats and speak in either house. Minis- 
 ters of State shall give their advice to the Emperor and be 
 responsible for it. All laws and ordinances require the coun- 
 ter-signature of a Minister of State. 
 
 A Privy council, whose powers are not defined, is recog- 
 nized, to deliberate with the Emperor on important matters 
 of State. "The Judicature shall be exercised by the courts 
 of law according to law in the name of the Emperor. The 
 organization of the courts of law shall be determined by law." 
 
 Judges shall be appointed from qualified persons and hold 
 ofiice during good behavior. Trials shall be public unless ex- 
 ceptional circumstances demand secrecy. New taxes or 
 changes in old ones can only be made by law, and national 
 loans must have the consent of the Diet. 
 
 Projects for amending the constitution may be submitted b5' 
 Imperial Order, but must have two thirds of the members 
 present and receive the vote of two-thirds of those present. 
 The Diet cannot modify the Imperial House law, the consti- 
 tution cannot be modified by the Imperial House law, and no 
 modification of either can be introduced during a Regency. 
 
264 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 The changes in the form of the government afford some 
 indication of the real progress made by the Japanese people 
 in the last half century. It is unique. A nation which had 
 lived in what may, as compared with the lot of other nations, 
 be fairly designated as profound peace for two hundred and 
 fifty years, suddenly became thoroughly dissatisfied with its 
 internal system and external relations. The tottering Shogun 
 government opened the ports to foreigners. Its enemies took 
 advantage of the prevailing prejudice against foreigners and 
 Christians to overthrow the Shogun. This accomplished and 
 the Mikado restored, not only were the old treaties ratified, 
 but new and more liberal ones were made. The whole military 
 class was destroyed, as a class, yet following that destruction 
 the military spirit has been aroused, and marvelous advance- 
 ment in the organization of army and navy followed, civil 
 wars accompanying the change were quickly terminated, and 
 whatev-er the impulse prompting the action of either party, the 
 result is a determined effort to produce a better form of 
 government and improved social and economic conditions. 
 
 No people on earth have manifested such a willingness to 
 learn and profit from the instruction of foreign people as the 
 Japanese during the last fifty years. Not only have they 
 established numerous schools throughout the empire, in which 
 foreign as well as native teachers are employed, but many of 
 the flower of Japanese youths have been educated in the lead- 
 ing universities of Europe and America. Nor has the purpose 
 been merely to gain knowledge beneficial to the government or 
 the ruling class, but on the contrary everything useful to the 
 pepole as well as tending to the strength and standing of the 
 nation has been eagerly sought after. The recent wars with 
 China and Russia clearly demonstrate the marked progress 
 made in the art of war, while the arts of peace have been 
 cultivated with avidity, and national pride and military spirit 
 have become correspondingly active. The progress has been 
 strictly Japanese. It has not been induced by any influx of 
 S' dominating superior race nor by any foreign directing hand. 
 The people of Japan, living under a form of government 
 which in theory was an extreme representative of despotism, 
 
JAPAN 265 
 
 have reached out after wisdom wherever they could find it, 
 have taken home the lessons they have learned and assimi- 
 lated foreign ideas to Japanese conditions with marvelous 
 rapidity. Under an absolute despotism the spirit of progress 
 has developed with such strength as to rule the rulers. 
 
 The labors of progressive Japanese have been recognized 
 and their counsel followed more readily than those of re- 
 formers in republican America. Of all the nations of the 
 earth the Japanese have in the last half century been the most 
 progressive, yet the multitude of common people are still ex- 
 tremely poor, and the problems confronting the government 
 and people are now no less complicated and perplexing than 
 heretofore. The basis of this progress it must be clearly ap- 
 parent did not lie in the genius of their government. Nor 
 can it be attributed to the effect of the teachings of Christians, 
 for in no country has less progress been made. Indeed one 
 of the forms of agitation preceding the new development was 
 for a restoration of the ancient religion, Kami worship or 
 Shintoism. Much of the learning and customs of the Japa- 
 nese was borrowed from China. The teachings of Confucius 
 had long been studied, and the form of government and or- 
 ganization of society were moulded to a great extent by them. 
 Buddhism had many followers. The constant inculcation in 
 the minds of the children of the duty of obedience to parents 
 till their death and of worshipful submission to the paternal 
 authority of the Emperor, which furnished the foundation of 
 Chinese civilization, seems to have developed happier domestic 
 conditions in the islands than on the continent. Notwith- 
 standing the effort to return to the ancient religion and the 
 ancient form of government, rapid changes followed, result- 
 ing in the admission of light on all questions, the emergence 
 of the Mikado from that seclusion in which he had been re- 
 garded more as an object of religious veneration than a ruler 
 to be obeyed, to be seen, known, advised and consulted with 
 by his subjects, and in breaking down the barriers which ex- 
 cluded Christianity. 
 
 Though there were some violent dissensions in the early 
 years of constitutional government in Japan the trend toward 
 
266 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 settled conditions of order has been continuous. During the 
 first twelve sessions of the diet, extending over a period of 
 eight years, there were twelve dissolutions, but during the 
 next thirteen sessions, extending over a period of eleven years 
 there were but two. During the first eight years there were 
 six changes of cabinets; while during the next eleven years 
 there were but five. 
 
 Authorities 
 
 Arthur May Knapp : Feudal and Modern Japan. 
 
 Wm. E. Griffs: The Mikado's Empire. 
 
 Count Okuma: Fifty Years of New Japan. 
 
 J. J. Rein: Japan. 
 
 Toyokichi lyenaga: The Constitutional Development of 
 
 Japan. 
 Foreign Constitutions. 
 
CHAPTER XII 
 
 Turkey 
 
 The Turkish race, that now dominates the country which 
 was the seat of the early germs of ^western civilization, made 
 its first appearance, so far as is known to history, in central 
 Asia, where Chinese accounts locate it about i8o B.C. In the 
 time of Justinian the Turks established a large empire with 
 their chief seat in the vicinity of the Altai Mountains. The 
 mode of life of the people was mainly nomadic, and the do- 
 minion established was not enduring. In course of time the 
 tribes became scattered, and under pressure from Mongol ene- 
 mies early in the thirteenth century one of them passed through 
 Persia into Armenia. Having aided the Seljuk emperor in a 
 battle with the Mongols, it was allowed to settle on the Byzan- 
 tine frontier. On the fall of the Seljuk Empire Osman, chief 
 of this particular tribe, succeeded in extending his power over 
 kindred tribes scattered throughout Asia Minor, and in 1301 
 began to coin money and to have the public prayers read in 
 his name as monarch. From his accession to power the 
 modern Turkish empire dates. Like most founders of 
 despotisms he was a man of capacity and morals superior to 
 most of his contemporaries, and devoted his energies with 
 singular disinterestedness to the establishment of order and 
 justice, as well as to military operations against his enemies. 
 He combined with the religious zeal of the devout Moslem and 
 its characteristic military spirit great generosity and love of 
 justice. He was devoid of avarice, and on his death his 
 wealth was found to include only two or three suits of clothes, 
 a few weapons, some horses and a flock of sheep. His ad- 
 ministration of justice was so far superior to that of the 
 Greek emperor that the subjects of the latter went to him 
 for protection. For a century the Ottoman Empire was vigor- 
 ously administered and its boundaries extended by the descend- 
 
 267 
 
268 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ants of Osman, till the reign of Bayazid I, when the Tartar 
 hosts under Timur overran the empire, annihilated Bayazid's 
 army and took him prisoner in 1403. Timur withdrew and 
 Muhamed, son of Bayazid, who died in captivity, restored the 
 empire. In 1453 Muhamed II besieged and took Constan- 
 tinople and put an end to the Roman Empire of the east, which 
 had dwindled to a mere shadow. In 1481 a Turkish army 
 crossed the Adriatic into Italy and stormed Otranto, which 
 however they were not able to hold. Under his successor, 
 Bayazid II, the Turks won their first great naval victory 
 off Sapienza over the Venetians. The empire continued to 
 grow until the reign of Suleyman I, under whom it reached 
 its greatest extent and power, but also met with the best or- 
 ganized and most determined resistance. From Constanti- 
 nople the Sultan ruled in Europe almost to the gates of 
 Vienna ; in Asia beyond the Tigris, and in Africa from Egypt 
 to Algiers. 
 
 Starting with Osman in 1301 and continuing till the death 
 of Suleyman in 1566 the Turks had a succession of remark- 
 ably vigorous and successful rulers. The degeneration and 
 decay, which usually manifests itself so quickly in the progeny 
 of absolute monarchs, did not appear, but Suleyman is given 
 the character of one of the best and most accomplished rulers 
 of his age, and for forty-six years his vast dominions felt the 
 vigor of his untiring energy. Although his reign was sullied 
 by his execution of his brother-in-law, whom he had made 
 grand vizier, and by other arbitrary executions, and by great 
 barbarities committed by his army during the siege of Vienna, 
 such things were characteristic of that age. The Turkish 
 Empire then included all the principal seats except Rome of 
 that ancient civilization which we have inherited. Chaldea, 
 Babylon, Nineveh, Egypt, Phoenicia, Greece, Carthage, Pales- 
 tine, Constantinople all Asia Minor and most of the Greek 
 islands were subject or tributary to the Sultan. The ruler 
 was descended from a barbarous tribe of central Asia through 
 the male line, intermixed with more polished races through 
 the females. He ruled entirely in accordance with the theory 
 of government established by Mohammed and the Caliphs. He 
 
TURKEY 269 
 
 was absolute in the sense that his orders must be obeyed, and 
 that he could not be called to account for any act by any con- 
 stitutional authority. The Sultans have in fact at all times 
 exercised arbitrary power, and have put to death without trial 
 such persons as they chose, when they could find instruments 
 to execute their will. In the administration of the govern- 
 ment, however, the theory is not arbitrary power but divine 
 law as declared in the Koran. All questions in courts of 
 justice are to be determined by the law declared by the 
 Prophet, when such can be found, and in cases where the 
 Koran furnishes no rule, the precedents established by the 
 Prophet and the early Caliphs are of great a,uthority. 
 
 The feudal system, which was already declining in western 
 Europe in the time of Osman, never gained much hold in the 
 territory included in the Turkish empire. As a result of the 
 Crusades it was established and maintained at Jerusalem dur- 
 ing the dominion of the Franks, but expired after they were 
 driven out. The spirit of the Koran, following that of the 
 new testament in this respect, is one of equality, and no order 
 of nobility existed in the empire. Equality however referred 
 only to free males. Slavery was recognized, and women 
 were regarded as inferiors. Polygamy has always been al- 
 lowed, but in fact is only practiced by a very small number 
 of the people. The teachings of the Koran constantly magnify 
 the value of the future life and the future joys of the true 
 believers who are saved and the frightful torments of the 
 damned. The heaven offered is a sensual one, fitted to the 
 low instincts of the Arabs of his time. Mohammed taught 
 his followers to despise the things of this world, and while he 
 made comparatively little effort to perfect a governmental 
 system, what he did in that line was enjoined as a religious 
 duty and became at once binding as a civil and religious duty. 
 Herein lies a marked contrast between the teachings of Jesus 
 and those of Mohammed. Jesus announced the moral law 
 and the necessity for its observance in order to gain future 
 happiness, but made no attempt to promulgate a code of civil 
 law. Throughout the whole history of the Turkish empire 
 the religious influence has been of prime importance in mould- 
 
270 EVOLUTION OF GOVERNMENTS AND L.\WS 
 
 ing public sentiment and private character. At the time of 
 Suleyman's reign Turkey was at least one of the most ad- 
 vanced nations in agriculture, manufactures, internal com- 
 merce and in its schools and administration of the laws. Its 
 theory of government and code of laws were however un- 
 progressive, and while the government of today may not be 
 distinctly worse than that under Suleyman, it appears to be 
 so by comparison with the Christian nations. 
 
 From the reign of Suleyman the fortunes of the Turks 
 began to wane. His son and successor Selim II was a weak 
 debauchee, the first of the line who shrank from the dangers 
 of war and preferred the pleasures of the palace. Murad III 
 who succeeded him had all the vices and weaknesses of his 
 father, and the administration fell into the hands of corrupt 
 favorites. The Janissaries, to whom as the first regular stand- 
 ing army of Europe was due much of the credit of the vic- 
 tories under preceding reigns, manifested a disposition similar 
 to that of the old Praetorian guard of the Romans. They 
 mutinied on several occasions and compelled compliance with 
 their demands. Here followed a succession of weaklings and 
 in 1622 Osman, who sought to free himself from the Janis- 
 saries, was deposed and soon after murdered by his vizier 
 whom he had deposed. 
 
 Murad IV, who ascended the throne in 1623, had the old 
 time vigor of the Osmanlis. He caused the leaders of the 
 mutinous Janissaries to be beheaded, and proceeded to purge 
 the administration of its corrupt elements by causing all such 
 as he deemed necessary to be put to death. He was a re- 
 former, who carried out his reforms by the methods of the 
 despot. His successor Ibrahim again exhibited the weakness 
 and folly of a princely debauchee. After his time there were 
 examples of vigorous administration by able grand viziers, 
 but the Sultans were generally weak. Mahumed II^ — 1808- 
 1^39 — exhibited more vigor and in 1828 destroyed the rebel- 
 lious Janissaries, who had so often disturbed the peace of 
 the capital and dictated terms to the Sultan and his ministers. 
 With the growth of the power of Russia that of Turkey has 
 correspondingly waned. The evils of its despotic system and 
 
. TURKEY 271 
 
 the blighting influence of its narrow fanaticism have pre- 
 vented that development and progress which has been so gen- 
 eral in Europe, and instead of its position as the first power 
 in the time of Suleyman, it is now looked upon as one of the 
 weakest and worst governed nations of Europe. Neverthe- 
 less modern ideas are permeating the empire. In 1876 a 
 liberal constitution was promulgated, but not given effect. 
 On July 24, 1908, after a bloodless revolution the constitution 
 of 1876 was restored. Turkey's European possessions have 
 been repeatedly curtailed and in 191 2 Italy had forcibly taken 
 a part of her African possessions, and the allied Balkan states 
 and Greece have waged successful war and inflicted crushing 
 defeats on her, further curtailing her hold on Europe. 
 
 Prior to the revolution of 1908 the governmental system of 
 Turkey was a theocratic despotism, hereditary in the family 
 of Osman. The Sultan is still the spiritual head of the Moslem 
 world, but under the new constitution his temporal power is 
 that of a constitutional monarch. A ministry responsible to 
 the Turkish parliament, instead of to the Sultan, has been 
 established. The grand vizier, named by the Sultan, pre- 
 sides over the council of ministers, which is made up of the 
 Sheik-ul Islam and the ministers of home and foreign affairs, 
 war, finance, marine, commerce and public works, justice, 
 public instruction, evkof, grand master of ordnance and 
 president of the council of state. The Sheik-ul Islam is the 
 head of the Ulema and representative of the Moslem Hier- 
 archy, being nominated by the Sultan with the approval of 
 the Ulema, the general body of doctors of Mohammedan law. 
 The importance of the religious establishment is disclosed by 
 the vast possessions of the mosques and the fact that all the 
 Moslem schools are connected with the mosques, and the 
 government through the minister of public instruction and 
 board of censors exercises a censorship over all the books used 
 and branches taught in the schools. This censorship has at 
 times also been extended to the Christian schools in Armenia 
 and elsewhere, and the use of books inculcating doctrines 
 deemed dangerous has been suppressed. The minister of 
 evkof is at the head of the department having charge of 
 
272 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 property held by the mosques either for reHgious uses or in 
 trust in whole or in part for uses declared by the donors. It 
 is estimated that between one-third and one-half of all the 
 property in the empire is held by the mosques. The admin- 
 istration of the mosque revenues and the execution of the 
 various trusts on which much of the property is held render 
 the department of evkof one of the most important of the 
 government. For administrative purposes the empire is di- 
 vided into vilayets (provinces), over which a vali (governor), 
 is appointed. These are divided into sanjaks or mutessariks, 
 which are subdivided into kasas, which are again subdivided 
 into nahies. The chief officers under the valis are styled re- 
 spectively mutessarifliks, kaimakams and mudirs. The valis 
 and nmtessarifs bear the title of pasha, and all but the mudirs 
 are appointed from Constantinople. These are named by the 
 valis. All these officers exercise both judicial and executive 
 functions and, except the mudirs, are mostly chosen from a 
 place other than that where they rule. Each of them has a 
 council, composed of members of the different communities, 
 with whom he advises as to matters of detail. The character 
 of the local administration is directly dependent on the char- 
 acter and capacity of the vali, who is a local autocrat. The 
 collection of the revenue is farmed out to the highest bidder, 
 a system always productive of oppression and dishonesty. 
 The authority of the different officials is without definite limi- 
 tations and naturally is irregularly and oppressively exercised. 
 No efficient system of checking the accounts of officials who 
 handle the public revenue exists, and the Turkish officials are 
 generally rated as corrupt and avaricious. The Moslem popu- 
 lation is of course wholly subject to the official system above 
 outlined, but foreigners settled in the country are by treaty 
 stipulations exempted from the jurisdiction of the local courts, 
 and cases between themselves are heard before the consuls of 
 their respective governments. Cases between a Turk and a 
 forigner are heard before a mixed court. Before the revolu- 
 tion military service was compulsory only on Moslems. It is 
 now compulsory on all Ottomans. There are many schools 
 maintained in the Christian communities of the Greeks, Ar- 
 
TURKEY 273 
 
 menians and Syrians, some of which afford a good range of 
 studies when not restricted by the censorship, which the fan- 
 atical Moslems at times exercise. 
 
 Under the early caliphs the schools were not merely for 
 the purpose of propagating a knowledge of the Koran, but 
 there was an unrestrained desire for improvement in the 
 knowledge and use of language and of the sciences. Much 
 was borrowed from Greeks and Romans, and while the 
 superiority of the Koran over all other theological teachings 
 was maintained, the search after truth outside its covers was 
 stimulated rather than suppressed, but from the tenth century 
 the orthodox Sunnites, who still maintain their ascendency in 
 Turkey, have most successfully inculcated profound rever- 
 ence for the established faith and stifled all tendencies to 
 freedom of thought and original investigation. The princi- 
 pal school of Turkey is the University of Constantinople. 
 Most of the students are said to come from the poorer classes, 
 and enter this school after having received primary instruction 
 in the local schools sufficient to enable them to read, write, 
 count, and repeat the Koran. They are first taught classical 
 Arabic grammar and then the dogmas of Islam. The Koran, 
 traditions of the Prophet and the Sunna are expounded by the 
 teachers, and the pupil is given some instruction in the prin- 
 ciples of government as administered in the courts. On con- 
 clusion of his course the scholar goes out with his certificate 
 to find a place as a teacher, preacher, cadi or mufti or in some 
 other governmental post. The great corporation of the 
 Ulema, of which he has become a part, is usually able to find 
 him a place without difficulty, for there are not nearly enough 
 graduates to fill all the positions. The purely religious offices 
 of imam or khatib are not given exclusively to students and do 
 not confer a place in the hierarchy or special social status, but 
 the cadi, local judge, receives his appointment from the gov- 
 ernment and is a person of importance. In every place of 
 any importance there is at least one cadi, who tries and decides 
 all causes. From his decision an appeal lies to the mufti, who 
 reviews the questions of law only. These officers are to some 
 extent independent of the central authority, and the spirit of 
 
274 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 religious zeal and common interest, added to the great local 
 influence gained by them by reason of their superior learning 
 and judicial functions, renders the Ulema a power which no 
 Sultan has ever been able to ignore. It was a powerful factor 
 in the revolution of 1908. 
 
CHAPTER XIII 
 
 Greece 
 
 We know the Greeks better than any other ancient people 
 besides the Hebrews, mainly because more of their literature 
 and of the records of their doings have come down to us 
 than from any other. Their language was the vehicle through 
 which we received the new testament, and their culture has 
 been preserved and transmitted to us in many ways. Though 
 few in numbers at all times and operating in a limited field, 
 their intellectual activities were such that their works are still 
 worthy of close study and full of instruction. In govern- 
 ments and laws they furnish experiments on a small scale of 
 many schemes of social organization. Unlike their oriental 
 neighbors, they adhered to no beaten path but were full of 
 originality and invention. No religious creed enjoined loy- 
 ally to a particular form of government or imposed its laws 
 on them. No ruler, prior to Alexander, was able to establish 
 his authority over all. 
 
 Though much of tradition and more of fable concerning 
 the early inhabitants of Greece have come down to us, it is 
 sufficient for our purpose to know that in the earliest times, 
 concerning which we have any light, there were movements 
 of people from northern Asia Minor into Greece and that 
 Phoenician traders settled on the coast. While Homer writes 
 of kings, and the Greek traditions name early kingdoms, the 
 extent of each was so small that the name seems illy fitted. 
 The characteristics of the early organizations are analogous 
 to those of tribes rather than states. The king was a chief, 
 whose authority was fixed partly by custom and partly by 
 personal capacity to lead. 
 
 The most marked peculiarity of the development of the 
 early Greek societies was the tendency to segregation and to 
 build cities. Not only in Greece proper but throughout the 
 
 2/5 
 
276 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Greek islands, the coast settlements in Asia Minor and on 
 the continent of Europe, each settlement developed its city of 
 more or less size, with so much adjacent land as was neces- 
 sary for its support, and maintained its petty government, 
 independent of every other city or state. Though the form 
 of government was in the earliest times usually monarchical, 
 most of the petty kings were content to rule over single cities 
 and rarely attempted conquests beyond the lands used by their 
 people. The desire to hold other cities by force seems to have 
 been almost unknown, though there were instances of the ex- 
 action of tribute. The island of Crete may be mentioned as 
 an exception. The authority of Minos and other of its kings 
 is said to have extended over the whole island, and the ro- 
 mantic tale of Theseus relates that Athens was forced to pay 
 tribute to Minos until Theseus liberated it. How much of his- 
 tory and how much of fable is contained in accounts of these 
 persons it is impossible to determine. 
 
 In the early Greek communities the king consulted the elders 
 in matters of public interest, and matters of first importance 
 were submitted to and decided by a popular assembly. Poly- 
 gamy was not allowed, but slavery existed from the earliest 
 times till the subjugation by the Romans. As our accounts 
 of the first Greeks come through themselves, it necessarily 
 follows that the record starts with a people considerably ad- 
 vanced in knowledge and the arts. That much of their 
 culture was borrowed is conceded, and credit is given the 
 Phoenicians for their alphabet. 
 
 Sparta 
 
 The most peculiar and enduring government was that de- 
 veloped at Sparta. The early Dorian settlements in the mid- 
 dle valley of the Eurotas in Laconia, forming a cluster of 
 villages, developed into the Spartan state. When these set- 
 tlements were first made and just what comprised the king- 
 dom of Agamemnon, whose fame may rest far more on the 
 vivid imagination of Homer than on historic facts, is un- 
 known. The historic period is generally regarded as dating 
 from the time of Lycurgus, about 900 B.C. The elements 
 
GREECE 2.^^ 
 
 making up the Spartan state were, i, The Citizens, who 
 were Dorians, 2, The Perioeci, who dweU about the city in 
 Laconia and were landholders, but given no voice in the gov- 
 ernment, and 3, The Helots, who were serfs of the state, 
 bound to the soil and compelled to till it for the Spartan own- 
 ers, to whom they were forced to yield a large share of the 
 entire produce. These were allowed to have families, could 
 not be sold out of the country and fought in the wars. 
 
 At the head of the state, though with little real power, were 
 two hereditary kings, who commanded the armies in war. 
 The council of elders {gerousia or senate), was made up of 
 twenty-eight members, elected by the people from amongst the 
 citizens over sixty years of age, who then held for life, and 
 the two kings, making in all thirty. The senate formulated 
 public measures and submitted them to the general assembly 
 of, the people for approval or rejection. It was also the great 
 court of justice. The institution of the Ephors is said to have 
 been established after the time of Lycurgus. They were five 
 in number, elected annually by the people, and had authority 
 to call all public officers, even the kings, to an account. It 
 was they who had power to make war or peace, and in time 
 they came to be the chief power in the state. The main 
 design of the people was to restrain the power of the kings 
 through the Ephors. 
 
 The central idea of all the Spartan institutions was mili- 
 tary. A Spartan citizen had nothing to do with any trade or 
 industrial occupation. The Perioeci and Helots performed all 
 the labor of the state. The Spartan was raised a soldier, and 
 from childhood subjected to exercises and training calculated 
 to develop physical strength and endurance as well as courage 
 and military discipline. Girls, who were to be the mothers 
 of soldiers, were trained similarly and exercised in running, 
 wrestling, boxing and throwing quoits and darts. The mili- 
 tary spirit was inculcated in the females, and they became the 
 censors of the actions of the soldiers. There was great 
 freedom of association of males and females among the 
 young, and nowhere else among Greeks were women treated 
 with such high respect. 
 
278 EVOLUTION OF GOVERN MIENTS AND LAWS 
 
 A peculiar feature of Spartan life was the public mess, to 
 which all contributed and which all were bound to attend, not 
 excepting the kings. The members were distributed to tables 
 in parties of fifteen, selected by ballot. The fare was plain 
 and partaken of by all alike. Especial attention was paid to 
 the organization of the army as well as to the development 
 of the individual soldiers. The sole aim of Spartan policy 
 being to develop its military power, the moral tone was neces- 
 sarily low. At birth the boys were inspected by the elders of 
 their tribe and, if found deformed or puny, were exposed so 
 that they perished. The strong and sound were regarded, not 
 as subject to the guidance of their parents, but of the state. 
 They were early accustomed to hardships of every kind for 
 the purpose not merely of giving them strength and endur- 
 ance, but also courage and self-reliance. At the age of seven 
 they were assigned to classes and subjected to constant and 
 severe discipline. Education did not lead to literature, art or 
 any useful calling, but to war alone. It is most remarkable 
 that, with no application to any useful labor, the Spartans 
 through so many years should have maintained their physical 
 vigor. Athletic exercises were doubtless very beneficial in 
 the main, but the violent strains to which youths were sub- 
 jected often resulted in crippling or even killing them. They 
 were also subjected to cruel beating as a religious rite, often 
 resulting in death. This was said to be for the purpose of 
 inuring them to pain. In war the duty of the soldier was 
 to conquer or die. No circumstances whatever were recog- 
 nized as allowing surrender or retreat, and one who escaped 
 from a lost battle was disgraced and treated by the whole 
 community, men, women and children as infamous forever 
 after. While the Helots and Perioeci tilled the soil, tended 
 the flocks and performed all useful labor, the ruling class 
 were always dwelling in a military camp under strict and con- 
 stant discipline. Some attention was paid to oratory and the 
 use of language, brevity and point being the excellences 
 mainly sought. As the lands were parcelled out among the 
 people, and no one was allowed to engage in any business by 
 which wealth could be accumulated, there was of necessity a 
 
GREECE - 279 
 
 remarkable equality of condition, though the kings were al- 
 lowed much larger possessions than the rest. The Spartans 
 extended their power in the Peloponnesus at an early time, 
 but did not follow a policy of conquest. The purpose of their 
 military system was defensive rather than offensive. Not till 
 after their people had become corrupted, during the Persian 
 wars, did they rule over subjugated communities by means of 
 Spartan governors and garrisons. This was soon followed by 
 the rise of the Macedonian power under Philip, which termi- 
 nated the independence of Sparta as well as the other Greek 
 states. For more than 500 years this state maintained its 
 unique character and the integrity of its institutions. 
 
 Its long continuance is clearly attributable to the intense 
 devotion of the citizens to the preservation of the state. 
 Patriotism here was in fullest bloom. Each individual deemed 
 the state entitled to all his efforts while living and to the 
 sacrifice of his life when necessary. Nowhere else has the 
 spirit of self-sacrifice been so constantly maintained or at so 
 high a pitch, yet this devotion was not prompted by love of 
 man nor of all the people composing the state, nor of the 
 Spartan citizens as individuals. It was devotion to that body 
 of men of which the individual was a part. To foster this 
 spirit parents rejoiced in the death of sons who fell bravely 
 fighting, and mourned over and reviled those who fled in 
 safety. The spirit constantly cultivated was one of hardness, 
 but long singularly free from avarice and selfishness. The 
 Helots were cruelly treated, even to systematic assassination. 
 The natural affections were stifled to permit the destruction 
 of weak offspring. The system was rigid. It admitted of no 
 great expansion and aimed at no intellectual elevation, no 
 development of science or philosophy. Its one sublime ideal 
 of devotion to the public was confined to the narrow limits of 
 Sparta and not only wanting in love for others, but its high- 
 est purpose was the overthrow of enemies in battle. 
 
 In order to preserve the integrity of his system, Lycurgus, 
 Sparta's great law-giver, prohibited foreign travel, except in 
 the interest of the state, and excluded all foreigners, and 
 foreign commerce as well, from the city. To maintain equality 
 
28o EVOLUTION OF GOVERNMENTS AND lI\WS 
 
 he perpetuated poverty. Children were regarded as children 
 of the state, and the boys were raised together under a train- 
 ing which inculcated craft and courage. Their clothing was 
 scanty, and at the age of twelve they were deprived of all 
 but a single upper garment a year. For beds they were al- 
 lowed to gather reeds, and slept together in companies. The 
 command of the companies was given to a youth who had 
 been two years out of his class, chosen by an inspector. A 
 principal business of the elders was watching the conduct of 
 the boys and giving them instruction. Modesty in the modern 
 sense was not esteemed a virtue. At certain festivals and 
 games the young of both sexes appeared in scanty costume in 
 the presence of each other and of the elders, but all were 
 required to conduct themselves with strict decency and de- 
 corum in all respects. The marriage custom was a forcible 
 carrying off of the bride, and the newly married pair were not 
 allowed to remain together, but only to meet each other by 
 stealth. It was deemed honorable for a feeble husband to 
 allow his wife to have children by a man of superior qualities. 
 It was believed that this tended to the production of better 
 offspring. Marriage was so far compulsory that an old 
 bachelor was in disgrace, while the father of children was 
 honored. 
 
 Three fundamental laws declared by Lycurgus are men- 
 tioned. I. Not to resort to written laws. 2. Not to employ 
 in housebuilding any other tools than the -axe and saw. 3. Not 
 to undertake military expeditions often against the same 
 enemy. 
 
 Capital offenses were tried before the senate, others by the 
 ephors separately or all together. There being no written 
 laws, judgment was given in accordance with the sentiments 
 of the judge as to the merits of the particular case. The 
 simplicity of the Spartan society and the absence of all com- 
 merce with the outside world afforded no basis for an elabo- 
 rate system of laws. 
 
 As to the land tenure, although Plutarch states that Lycur- 
 gus divided the land into 9,000 shares for Spartan citizens 
 and 30,000 shares throughout Laconia for the other inhabi- 
 
GREECE 281 
 
 tants, modern critics discredit the statement. Nor can any 
 very definite statement of the law of inheritance be made. 
 There were inequaUties of possessions among the people and 
 recognized titles to land. It was from the produce of their 
 estates alone that the Spartan citizens furnished their quotas 
 to the public tables. Whenever one became too poor to con- 
 tribute his share, he lost his citizenship. 
 
 The military organization started with the enomoty, con- 
 sisting of from twenty-five to thirty-six men of about the 
 same age under a leader. Two to four of these were com- 
 bined into a Pentecosty, of which two to four formed a 
 Lochus and the Mora contained 400 to 900 men. The mili- 
 tary superiority acquired by the Spartans through their sys- 
 tem not only secured their independence, but gained for them 
 a predominating influence among all the petty Greek states, 
 which they retained until the Persian war. There was a con- 
 stant tendency however, for the number of citizens to dimin- 
 ish, so that in the time of Aristotle there were only about 
 1000. This is attributed to the gradual concentration of the 
 title to the land in a few hands. No other Greek state main- 
 tained the integrity of its social organization so long, but, 
 like every other rigid system which contained no provision 
 for changing conditions, in time it lost its early spirit and. at 
 the same time shut out the invigorating influences of contact 
 with the outer world and that spontaneous growth, which can 
 only come rapidly under conditions which invite new inspira- 
 tions. Advancement comes with new ideals, and to continue 
 the ideals must advance as the people move up. Mere perma- 
 nency of institutions or conditions evidences stagnation, rather 
 than a full and glorious life of progress. 
 
 Athens 
 
 The history of Athens appears mythical and uncertain till a 
 later date than that ascribed to the establishment of the Spar- 
 tan system. The early Ionian people of Attica were divided 
 into four tribes and these again into Phratries and Gentes. 
 Each gens was composed of a number of households not, it 
 is said, necessarily all related to each other by blood, but 
 
282 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 bound together by religious ties, proximity of possessions and 
 mutual dependence in protecting common interests. These 
 divisions were mainly religious and social. Besides these each 
 tribe was divided politically into three Trettys, and each 
 Tretty included four Naukraries. Prior to the time of The- 
 seus there was no central authority in Attica, each small town 
 maintaining its independence. Theseus, who has been in- 
 vested by Greek imagination with heroic virtues and mythical 
 adventures, appears to be a genuine historic character and to 
 have first established the ascendency of Athens over Attica 
 and, if any credit can be given to the tale of his adventures 
 in Crete, he relieved the people from the payment of tribute to 
 King Minos. There is so little rehable history of Athens 
 prior to about 750 B.C. that nothing can be safely built on it. 
 Codrus is said to have been the last who was permitted to be 
 called king, his successors being styled archofis and holding 
 office for life till Alkmaeon, when the term of office was 
 reduced to two years. This continued for seventy years, 
 when the office was made annual, with nine archons among 
 whom the powers were distributed. Down to 714 B.C. the 
 archons were all descendants of Medon and Codrus, but after 
 that date any of the eupatrids or nobles became eligible. At 
 the expiration of his term of office the archon whose adminis- 
 tration was approved became a life member of the senate of 
 the Areopagus. The functions of this body were both ju- 
 dicial and political. The archons were not of equal authority. 
 At the head was the Archon Eponymous, who determined all 
 disputes relative to the family and relations in the gens and 
 phratry, and was guardian of widows and orphans. He was 
 styled the Archon, and from his name the year was desig- 
 nated in their chronology. The Archon Basileus heard com- 
 plaints respecting offenses against religion and also of 
 homicides. The Polemarch was the general and judge of dis- 
 putes between citizens and non-citizens. Each of these con- 
 ducted certain religious festivals. The remaining six, styled 
 Thesmothetae, had general jurisdiction of other matters of 
 dispute. In 624 B.C., Draco, then one of the archons, was 
 directed to put the laws in writing, so that they might be 
 
GREECE 283 
 
 shown and known beforehand. The famed Draconian code 
 was not new laws made by him, but old ones reduced to writ- 
 ing. Its severity has often been remarked, but so little of it 
 has been preserved that its contents cannot be given or even 
 summarized. It was in his time that the judges, called Ephe- 
 tae, made up of fifty-one elders of leading gentes, were es- 
 tablished with power to judge in certain cases of homicide. 
 They sat in three different places, according to the nature of 
 the charge and defense, and were permitted to pass a sentence 
 less than death according to the justification or excuse, 
 whereas it is said that the Areopagus could only condemn to 
 death. Peculiar religious ideas connected with the different 
 places seem to have produced this system. The constitution 
 of such a variety of courts for trial of homicides would seem 
 to indicate a great number of such offenses. About 612 B.C. 
 Cylon seized the Acropolis and attempted to estabhsh himself 
 as tyrant, but failed miserably and many of his followers 
 were slain, some at the sanctuaries. 
 
 At the time of Solon the record becomes more clear, and 
 we have a more satisfactory account of the Athenian state. 
 Plutarch tells us that in Solon's time there were great dis- 
 orders in the state. Cylon's attempted usurpation and the 
 slaughter of his followers in the sanctuaries left bitter factions 
 and aroused superstitious fears. But more deep-seated were 
 the troubles arising from the conditions of the people and 
 their different views of government. He says, 'The inhabi- 
 tants of the mountainous part were, it seems, for a dem- 
 ocracy; those of the plain for an oligarchy; and those of the 
 sea coasts contending for a mixed kind of government, hin- 
 dered the other two from gaining their point. At the same 
 time the inequality between the poor and the rich occasioned 
 the greatest discord, and the state was in so dangerous a 
 situation that there seemed to be no way to quell the seditions 
 or to save it from ruin but changing it to a monarchy." Of 
 the poor debtors some were made slaves, some sold to foreign- 
 ers, others sold their children. The greater number determined 
 to resist this oppression. Solon was of the eupatrid order and 
 had gained great reputation and the confidence of all classes 
 
284 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 as a soldier and a citizen. He was made archon in 594 B.C. 
 and given authority to reform the laws and remodel the gov- 
 ernment. He repealed the peual laws of Draco, except those 
 concerning homicide, because of their severity, idleness and 
 petty larceny having been punishable with death. A more 
 difficult question to deal with was that of the oppression of 
 the poor by rich creditors through harsh laws harshly enforced 
 by the wealthy class, who held all judicial offices. Not only 
 were most of the small estates mortgaged, which was done 
 by setting up a stone on the land inscribed with the name of 
 the mortgagee and the amount of the debt, but the creditor 
 might take the body of his debtor as security and in default 
 of payment enslave or sell him. Against this system and the 
 merciless and unjust enforcement of it the poor clamored for 
 relief. 
 
 The difficulties experienced by the eupatrids in maintaining 
 order and enforcing the rights of creditors seems to have in- 
 duced them to accord Solon the ample power he was given 
 to reforrh the laws, he being one of their own order. The 
 poor also clamored for an equal division of the lands. This 
 Solon denied them, but he gave sweeping relief to the debtors. 
 He released all mortgages and removed all the mortgage 
 pillars from the land. He discharged all debtors, whose 
 bodies were pledged as security, from their debts, released the 
 debtors who had been enslaved, and even bought back others 
 who had been sold out of the country. He prohibited debtors 
 from thereafter pledging their persons as security, and also 
 forbade them from pledging or selling their children or un- 
 married sisters. For the relief of the other debtors, for whom 
 no such security was given, he provided that the minae, which 
 before went for seventy-three drachmas, should go for 100 
 thereafter, thereby relieving debtors by increasing the legal 
 value of the coins. Citizens who had been disfranchised, ex- 
 cept those condemned by the areopagus or ephetae or in the 
 prytaneum for murder robbery or treason, were restored to 
 their former privileges. 
 
 It was in remodelling the official system that Solon's work 
 produced the most lasting though not the greatest immediate 
 
GREECE 285 
 
 effect. He began by a new classification of the citizens based 
 on incomes. Those having annual incomes of 500 measures 
 in wet and dry goods, took first rank and were called Pentcu- 
 cosiomedimini. Those having between 300 and 500 measures 
 were put in the second class or equestrian order. Those hav- 
 ing 200 to 300 constituted the third class, and all whose in- 
 comes were less were placed in the fourth class. The first 
 class alone were eligible to the archonship and military com- 
 mands. The second were the horsemen, the third the heavy 
 armed infantry. These three classes were subject to direct 
 taxes on the value of their possessions by a graduated system 
 of valuation, having the effect to increase the rate according 
 to the size of the estate. The fourth class were not subject 
 to direct taxation, and were not eligible to office, but they 
 were given what in time proved to be a most important right, 
 that of sitting and voting in the general assembly. They 
 chose the archons from the first class and on the expiration 
 of their terms passed judgment on their conduct, and might 
 debar them from taking seats in the senate of the Areopagus. 
 He also established a senate of 400 members, made up of 
 100 elected by the people from each of the four tribes. All 
 citizens, except those of the poorest class, were eligible to the 
 senate. The senate considered and formulated matters to be 
 submitted to the general assembly, convoked and superintended 
 its meetings and executed its decrees. The old senate of the 
 Areopagus, made up of past archons whose conduct was ap- 
 proved, was retained and given enlarged powers over the 
 execution of the laws and the punishment of men of idle and 
 dissolute habits. The laws of Solon were inscribed on wooden 
 tables, which might be turned round in the oblong cases that 
 contained them. Plutarch says some of them were still pre- 
 served in the Prytaniiim in his time. Solon forbade the ex- 
 portation of all agricultural produce except olive oil. The 
 archons were required to solemnly curse such as violated the 
 law. He allowed only such immigrants to become citizens as 
 came to reside at Athens permanently and for the purpose of 
 carrying on some useful calling. If a father failed to teach 
 his son a trade or profession, the son was under no legal 
 
286 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 obligation to support him in old age. As the people of At- 
 tica had to resort to wells for water, he provided that, where 
 there was a public well, all within four furlongs should make 
 use of it, but if the distance was greater they must dig for 
 themselves. If after digging ten fathoms they found no water, 
 they might fill a vessel of six gallons twice a day at a neigh- 
 bor's well. He that planted a tree on his ground was to place 
 it five feet from the line, and if a fig or olive, nine, because 
 of the length of its roots. He that dug a pit or a ditch was 
 required to dig it as far from his neighbor's land as it was 
 deep. Bees were required to be kept three hundred feet from 
 those of a neighbor. Plutarch says, 'The most peculiar and 
 surprising of the laws is that which declares the man in- 
 famous who stands neuter in time of sedition. It seems he 
 would not have us be indifferent and unaffected with the fate 
 of the public, when our own concerns are upon a safe bot- 
 tom, nor when we are in health be insensible to the distempers 
 and griefs of our country. He would have us espouse the 
 better and juster cause and hazard everything in defense of 
 it, rather than wait in safety to see which side the victory will 
 incline to."^ In all marriages except those of heiresses he 
 prohibited the giving of dowries and allowed the bride to 
 bring with her only three suits of clothes and a little house- 
 hold stuff. This included an earthen pan for parching barley, 
 which symbolized her assumption of the charge of the house- 
 hold. The bride and groom were directed to be shut up to- 
 gether and to eat of the same quince. One of the laws 
 forbade men to speak ill of the dead. He also forbade reviling 
 the living in a temple, a court of justice, the general assembly 
 or at the public games. Offenses of this kind were punished 
 by a mulct of three drachmas to the person injured and two 
 to the public. He introduced the making of wills, but re- 
 stricted the right to those dying without children. He re- 
 stricted extravagance at funerals and prohibited women from 
 tearing themselves, and no hired mourner was allowed to 
 utter lamentable notes or do anything else to excite sorrow. 
 All citizens were required to attend the public entertainments, 
 
 ' I Plutarch, p, 185. 
 
GREECE 287 
 
 but prohibited from going too often. The victor at the Isth- 
 mian games was allowed a reward of 100 drachmas and at the 
 Olympian 500 drachmas. There was a reward of five drach- 
 inas for catching a he wolf and one for a she wolf, the 
 former being the price of an ox and the latter of a sheep. 
 The full text of Solon's code is not preserved. The fragments 
 above mentioned indicate something of its general tenor. 
 After his laws were promulgated, the senate and archons 
 were sworn to observe the laws under penalty of a golden 
 statue as large as life, to be erected at Delphi. This seems 
 to have been the only sanction they received. Having com- 
 pleted his labors, Solon found it too severe a task to defend, 
 construe and explain his own work, and thereupon obtained 
 leave of absence for ten years, during which the laws were 
 to remain unchanged. 
 
 Solon's system appears to have been insufficient to prevent 
 internal discord, for after his return the people again divided 
 into much the same factions as before, the mountaineers under 
 Pisistratus, the rich of the plains under Lycurgus and those 
 of the sea coast under Megacles. Pisistratus, under the pre- 
 tense that he had been assaulted, obtained leave to keep a 
 body guard of fifty armed with clubs. This Solon opposed 
 but without success. Thereafter Pisistratus seized the Acrop- 
 olis and succeeded in establishing his authority. His dynasty, 
 established 560 B.C., continued fifty years, with two intervals 
 however, during which he was driven into exile. Accounts of 
 his reign and that of his sens are meagre, but concur in as- 
 serting that he ruled largely through the forms which Solon 
 had established and with mildness. After Hipparchus, son of 
 Pisistratus, was killed by Harmodius and Aristogiton, the 
 reign of Hippias his brother was harsh and cruel. 
 
 For favors received from the Alkmoenids, who had been 
 driven into exile by Pisistratus, in rebuilding the temple, the 
 Delphic oracle played on the superstitious reverence of the 
 Spartans, and in answer to every consultation said, that 
 "Athens must be liberated." The Spartan reverence for the 
 deity supposed to preside at the temple at length caused them 
 to send an army to Athens to drive out the tyrant. The first 
 
288 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 expedition proved unsuccessful, but the second accomplished 
 the object and finally expelled the tyrant. This circumstance 
 strongly illustrates the peculiar notions of the Greeks of that 
 day. By this expedition the Spartans merely performed what 
 they deemed the religious duty of liberating their great rival 
 from a tyrant, from w^hich they derived no material advant- 
 ages, but suffered some losses of men. After the expulsion 
 of the Pisistratids the institutions of Solon, which had not 
 been destroyed but used by them as means for the execution 
 of their purposes, were restored to vitality with modifications 
 introduced by Cleisthenes, who allied himself with the classes 
 which had formerly been excluded wholly or partially from 
 sharing in the exercise of |)ublic functions. He extended the 
 right of citizenship, which had been confined to the four Ionic 
 tribes, so as to include all freemen. In order to accomplish 
 this he resorted to a new division into tribes, which disre- 
 garded the ancient gentes and phratries. He divided the whole 
 population of Attica into ten new tribes, each of which in- 
 cluded a certain number of denies or cantons, in which the 
 proprietors and residents were enrolled. The demes assigned 
 to each tribe were not all contiguous, and so a tribe did not 
 occupy a compact territory. This scattering of the members 
 of a tribe and inclusion of all classes of people without regard 
 to the ancient gentes tended strongly to unify them. The 
 ancient gentes and phratries remained as family and religious 
 associations, but without political significance. City demes 
 and country were included in the same tribe, and jealousy 
 between city and country thereby avoided. Each deme had 
 its local interests, but the tribe as a whole had no interest 
 distinct from that of the state, being merely an aggregate of 
 demes for political, military and religious purposes. Each 
 tribe had a chapel, sacred rites and festivals and a common 
 fund for these purposes. The deme was the primary political 
 aggregation. It had its demarch who kept the register of en- 
 rolled citizens, its collective property, its public meetings and 
 religious ceremonies, and its taxes, levied and administered 
 by itself. The registry of citizens w^as corrected at the public 
 assembly by inscribing the names of the sons of citizens who 
 
GREECE 289 
 
 had attained the age of eighteen. Sometimes names were 
 expunged from the register, in which case an appeal could be 
 taken. Under the new arrangement the public assembly was 
 greatly increased in numbers, and the membership of the senate 
 was increased from 400 to 500, made up of fifty from each 
 of the ten tribes, chosen annually. About this time the prac- 
 tice began of choosing the senators by lot. The military 
 organization was changed so that ten strategi, generals, one 
 from each tribe, were chosen. This did not deprive the pole- 
 march of the old constitution of all his power, but the power 
 and influence of the strategi steadily increased. A board of 
 ten ApodektaCj one from each tribe, managed the exchequer. 
 With the revival of popular government the senate at once 
 became a most important body, exercising a general super- 
 vision of the affairs of the city. The political year was divided 
 into ten portions called Prytanies; the fifty senators of each 
 tribe remaining in constant attendance on the senate by turns 
 during one prytany. Each prytany was divided into five 
 periods of seven days, and the fifty senators of each tribe 
 into five bodies of ten each. Each body of ten presided in the 
 senate for a period of seven days, choosing by lot one of 
 their number each day for the chairman, who was called 
 epistates, and during his day of office held the keys of the 
 Acropolis, the treasury and the city seal. Senators not of the 
 prytany might attend all sessions, but were not required to 
 do so, except that one from each tribe was requisite to a 
 valid meeting. The general assembly was convoked either 
 by the senate or the strategi. In later times there were four 
 regular sessions during each prytany at which the prytanies 
 presided, the epistates putting all questions to vote. 
 
 The exact distribution of judicial power in the time of 
 Cleisthenes cannot be stated, but the whole body of citizens 
 above thirty years of age was convoked to try persons charged 
 with certain public crimes and, when so assembled, bore the 
 name of Heliosa or Heliasts. Afterward 6,000 citizens over 
 thirty years of age were annually selected by lot, 600 from 
 each tribe. Five thousand of these were distributed into 
 panels or decuries of 500 each, the remaining 1,000 being 
 
290 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 reserved to fill vacancies. When there were causes ripe for 
 trial, the Thesmothets or six inferior archons determined by 
 lot, which declines should try and what magistrate should 
 preside. Sometimes two decuries sat together. In time the 
 archons came to be chosen by lot, and any citizen was eligible, 
 subject however to an examination into his status as a citizen 
 and his moral and religious qualifications. By this time the 
 archons had become -shorn of much of their power, their 
 principal functions being to hold preliminary examinations, 
 preside at trials and to pass sentence for petty offenses. The 
 strategi, however, were chosen, not by chance, but by pref- 
 erence of the citizens manifested by a show of hands. The 
 date of the adoption of universal eligibility to office is fixed 
 as after the battle of Plataea. 
 
 The modifications of the constitution of Solon in the time 
 of Cleisthenes stopped short of that full democracy which 
 developed later. The archons still retained much judicial 
 power, and the poleniarch was still a general. They were 
 then elected, not chosen by lot. The fourth class of the census 
 were still excluded from the principal offices. The senate of 
 the Areopagus still retained some of its power, but the popu- 
 lar bodies of the senate of 500 and the general assembly be- 
 came the dominant forces of the state. 
 
 A peculiar institution, ascribed to Cleisthenes, was the ostra- 
 cism, designed to get rid of the contentions of leaders of rival 
 factions. Before a vote of ostracism could be taken a case 
 was presented to the senate and general assembly. In the sixth 
 prytany of the year these bodies debated and determined 
 whether the public welfare required a vote to be taken. If 
 they decided in the affirmative, a day was named, the agora 
 was enclosed with a railing with ten entrances for the citizens 
 of each tribe, and ten vessels were provided to receive the 
 votes, which consisted of a shell or potsherd with the name of 
 the person whom the voter desired to banish written on it. At 
 the end of the day the votes were counted, and any person 
 against whom there were 6,000 votes was ostracized. He was 
 allowed ten days to settle his affairs and then required to 
 leave Attica for ten years, but he retained all his property and 
 
GREECE 291 
 
 suffered no penalty, nor was he deemed disgraced. It was in 
 fact a great distinction to be regarded of so much importance 
 as to require ostracism. 
 
 The spread of the Persian empire over Asia Minor brought 
 Greeks and Persians in contact in Ionia and elsewhere, and 
 the demand for submission, which had been enforced on the 
 Greek cities of Asia, was extended to the islands and to 
 Greece. The vast resources of the Persian king and the 
 prestige of the success of Persian arms were such as to cause 
 the king of Macedon and many of the Greek cities, notably 
 Thebes, and when the final conflict came, Thessaly, to submit 
 to the Persian king and reinforce his army. Democratic 
 Athens in its resistance of the foreign despot exhibited in full 
 measure the vigor of a free people fighting for their independ- 
 ence. The battle of Marathon, fought about twenty years 
 after the expulsion of the Pistratids, put an end to the first 
 invasion. Under the leadership of Themistocles the Athen- 
 ians turned their attention to the sea and began to build ships. 
 The policy of Athens in many particulars stood in strong con- 
 trast to that of Sparta. The government of Sparta was nomi- 
 nally monarchial, but in fact, an oligarchy, that of Athens a 
 democracy. The Spartans excluded all foreign commerce, the 
 Athenians invited it. The Spartans made war on land their 
 principal business, the Athenians sought material prosperity 
 through peaceful channels, but without neglecting their de- 
 fense on land and sea. When the invasion under Xerxes 
 came ten years later, the Athenians were prepared with both 
 a fleet and an army. Rather than submit they left Attica and 
 took their families to Troezen, Aegina and Salamis. The 
 fortunate circumstances of the destruction of many of the 
 Persian vessels by storms made Greek victory possible on the 
 water. Nothing better illustrates the peculiarities of the 
 Greeks than their conduct during this war. Want of concert 
 of action and the celebration of religious festivals, deemed of 
 more importance than defense of their country, left Leonidas 
 with his little band to confront the whole Persian host at 
 Thermopylae, and this when the situation was fully under- 
 stood. The defense made illustrates the extreme of Greek 
 courage and devotion. 
 
292 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 The Pan-Hellenic congress, convened on call of Sparta and 
 Athens on the isthmus of Corinth for the purpose of obtaining 
 a union of all the Greeks against the Persians, exhibited 
 strongly the want of harmony among the different cities and 
 their utter inability to unite even in a case of such extreme 
 necessity. Not only did the distant cities in Crete and Sicily 
 fail to respond, but Argos remained neutral, and Thebes and 
 many other cities espoused the Persian side. The dissensions 
 among the leaders, prior to the naval battle of Salamis, would 
 have prevented the great victory that followed but for the 
 artifice of Themistocles, which induced the Persians to hem 
 the Greeks in in the Bay of Salamis and thus prevent the ships 
 of the different cities from scattering. The characteristic 
 wrangling and dissension among the leaders while considering 
 the course to be pursued, was followed by the no less charac- 
 teristic skill, bravery and determination with which the great 
 battle was won. The battle of Plataea found Greek confront- 
 ing Greek, but with a marked difference of spirit. Those in 
 the Persian army were hardly a source of strength to it, ex- 
 cept perhaps the Thebans, but the spirit of those who defended 
 their country was worthy of all admiration. 
 
 Though Athens had been burned and Attica laid waste, the 
 people returned victorious, with a purpose and a system that 
 soon made Athens the leading city of the Greek world. The 
 development of Athens was not unilateral but multiform. 
 Each citizen was not merely invited but required to take an 
 interest in public affairs and assume his share of responsibil- 
 ity for the public welfare. All avenues for advancement were 
 open to each citizen. After the battle of Salamis the fourth 
 and most numerous order of citizens, who under the constitu- 
 tion of Solon were ineligible to office, were admitted to the 
 same privileges as the other three classes. The contact of 
 Greeks with Persians exposed the former, not merely to the 
 force of the great despotism, but to the insidious influences 
 of the corrupt system. The leading citizens in the Greek cities 
 were approached by Persian agents with offers of bribes, in 
 some cases of money, in others of establishment in power un- 
 der Persian protection, and it is a melancholy fact that, even 
 
GREECE 293 
 
 after the great victories of Salamis and Plataea, Themistocles, 
 to whom more than to any one else was due the naval victory, 
 and Pausanius, the Spartan commander-in-chief at the great 
 battle, were corrupted by Persian bribes and died in disgrace. 
 Miltiades, the commander at Marathon, fell in a somewhat 
 different manner. Having induced the Athenians to place him 
 in charge of an expedition, he diverted it to an attack on the 
 people of the island of Paros for his own personal ends. He 
 was repulsed and in his attempt to get away received injuries 
 which disabled him. On his return to Athens he was brought 
 to trial for his misconduct and condemned to pay a fine of 
 fifty talents ; the jurors refusing to pass the death sentence 
 because of his great services. That the Athenians were able 
 to condemn and punish such a man at such a time indicates 
 most superior integrity in their institutions. The corruption 
 of Themistocles led to his ostracism about nine years after 
 the great victory. At Sparta the treason of Pausanius, who 
 had long been in corrupt and treasonable correspondence with 
 the Persian king, was not readily believed by the ephors, and 
 it was only after the clearest proof of his treason, that an 
 attempt was made to bring him to trial. When the ephors 
 attempted to arrest him he took sanctuary in the temple of 
 Athene Chalcioecus, where he was confined till at the point 
 of starvation, when he was removed to die where he would not 
 desecrate the temple. Notwithstanding the Spartan contempt 
 of money Pausanius received much Persian gold and was 
 ruined by it. 
 
 Prior to and during the Persian invasion Sparta had been 
 allowed first place in joint undertakings of the Greek cities, 
 and a Spartan general commanded at Plataea and a Spartan 
 admiral at Salamis, notwithstanding the great superiority of 
 the Athenian fleet. After the Persians retired and the Greeks 
 followed them to Cyprus and Byzantium the Spartan Pau- 
 sanius was still in command. The traitorous correspondence 
 of Pausanius with Xerxes occasioned his recall to Sparta for 
 trial, and in his absence command of the Greek forces passed 
 to the Athenians. This led to the formation of a confederacy 
 with Athens at its head, for the protection of the Greek cities 
 
294 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 against Persia about 477 B.C. The leading spirit in the for- 
 mation of this confederacy was the Athenean Aristides. The 
 terms and purposes of the confederacy and its general policy 
 were determined by a synod of representatives of the cities, 
 which convened at .the temple of Apollo at Delos. As the 
 head of this confederacy Athens at once took a prominence 
 never before attained. It was a confederacy, designed not 
 merely to protect the cities on the mainland of Greece and the 
 islands of the Aegean sea, but also those on the coast of Asia 
 Minor and Thrace as well. From this time till the breaking 
 out of the Peloponnesian war the power and commerce of 
 Athens grew rapidly. The yearly contributions of the allies in 
 time were largely changed from ships and men to payments of 
 money, which Athens received. The voluntary character of 
 these contributions also disappeared, little by little, and pay- 
 ment by the delinquents was compelled by Athens by force. 
 
 In the time of Pericles great modifications of the govern- 
 mental system were made, and the archons and various other 
 magistrates were chosen by lot. The senate of the Areopagus 
 had exclusive judicial power, not clearly defined, and also 
 exercised censorship over the habits of the citizens and super- 
 vision over the proceedings of the public assembly to prevent 
 infringements of the established law. These powers were 
 based on a foundation of long usage and liable to great abuse. 
 They were greatly curtailed, leaving only power to try cer- 
 tain cases of homicide and to impose small fines for minor 
 offences. The main judicial power was transferred to the 
 popular dikasts in both civil and criminal causes. A very 
 common method of trial was by arbitration, and a number of 
 public arbitrators were annually appointed, to whom or others 
 chosen by the parties, all private disputes were submitted in 
 the first instance. If dissatisfied with their decision either 
 party might carry the case before a dikast. The regular 
 number of a panel seems to have been 500, but for important 
 causes more were sometimes taken, and it seems that less 
 sometimes sat. These jurors during and after the time of 
 Pericles were paid a small sum per diem out of the public 
 treasury while serving. At about the same time the indi- 
 
GREECE 295 
 
 vidual magistrates and the Senate of 500 were deprived of 
 all judicial attributes except to assess small fines, and the 
 laws of Solon were brought down from the Acropolis to the 
 neighborhood of the market. The final and efficient judicial 
 power was thus vested in a numerous body of common citi- 
 zens, and this was done mainly for the purpose of obviating 
 the bribery to which single or a small number of officials 
 might be subjected : the Greeks of that time exhibiting a 
 marked weakness of character when tempted by money. 
 
 A general power of supervision over the magistrates and 
 over the general assembly was vested in seven magistrates 
 called Nemophylakes, who sat along with the presidents of the 
 senate and assembly, and whose duty it was to interpose 
 whenever any step was taken or proposition made contrary 
 to law. It was the duty of the Thesmothetae annually to 
 examine the existing laws and make note of any that con- 
 flicted and in the first prytany of the Attic year on the eleventh 
 day an assembly was held, at which the first business was to 
 go through the laws seriatim and submit them for approval or 
 rejection. If a law was condemned by a vote of the as- 
 sembly, or if any citizen had a new law to propose, the third 
 assembly of the prytany appointed 500 to 1,000 Nomothetae 
 from among the 6,000 dikasts to consider the proposed 
 change. Previous notice was required to be given by a citi- 
 zen having a new law to propose, in order that the time 
 necessary for the sitting of the Nomothetae might be meas- 
 ured according to 'the number of matters to be submitted to 
 their consideration. Public paid advocates were named to 
 defend the existing law, and the mover of a repeal was re- 
 quired to make out his case before the Nomothetae. The 
 power to enact laws, except a decree applicable to a single 
 case, was thus taken away from the general assembly. A 
 very peculiar provision was that by which the author of a 
 new law was liable to indictment, trial and punishment, where 
 the new enactment contradicted a law already in existence 
 without expressly repealing it, or where it was otherwise 
 defective or mischievous. If the dikastry before whom the 
 author was tried found him guilty, it had the effect of repeal- 
 
296 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ing the new law. The punishment inflicted in this, like some 
 other classes of cases, was variable. The prosecutor might 
 propose a sentence and the accused might also propose one. 
 The dikastry then adopted either one or the other without 
 change. If the accused was acquitted, the accuser was lial:)ie 
 to a fine of i,ooo drachmas, unless one-fifth of the dikasis 
 voted for conviction. The author of the law could not be 
 punished if the prosecution was instituted after the expira- 
 tion of a year, but the law itself might be condemned and thus 
 repealed. Publicity, opportunity to produce evidence and to 
 be fully heard in argument were characteristic of Athenian 
 trials. The number of the jury and modes of trial are gen- 
 erally regarded as affording undue weight to oratory, but 
 no ancient system is known to us which on the whole worked 
 so fairly. Freedom of speech on all matters of public interest 
 is a strong proof of the vigor of the democracy. 
 
 The internal system as perfected in the time of Pericles 
 continued without great change until the Macedonian con- 
 quest, but the situation of the members of the Athenian de- 
 fensive league gradually changed, so that in time all but a few 
 of the strongest were regarded as Athenian dependencies. 
 They were compelled to pay their yearly tribute, which was 
 kept at Athens instead of Delphos. The synod, which at first 
 determined the course to be pursued in matters affecting the 
 public interest, ceased to exercise any authority, and all ques- 
 tions were determined at Athens. Toward her new colonies, 
 as well as the weaker members of the confederacy, Athens 
 or their citizens with citizens of Athens were brought before 
 assumed imperial powers. Disputes between her dependencies 
 the Athenian dikasts for trial. While this in theory opened 
 to all the same forum that the Athenian citizens were bound 
 to resort to in contests with each other, in practice it must 
 have imposed hardships on suitors residing at a great distance 
 as well on the score of expense as of want of familiarity with 
 procedure and inability to prove the facts. The excellence of 
 the domestic institutions of the head of the confederacy could 
 not render palatable arbitrary dictation to the dependencies. 
 Hostitlity against Athens grew up in the subject cities and 
 
GREECE 2<yj 
 
 increased in strength as the fear of a Persian despotism grew 
 less. The wonderful growth of the democratic city under 
 the leadership of Pericles, its commerce, its ships, its wealth 
 in public treasuries and buildings and its brilliance in all lines 
 of culture and intellectual development, excited the jealousy 
 of rival cities and discontent among its dependencies. With 
 the growth of Athens and its allied cities, which maintained 
 systems of government democratic in their essential features, 
 the Spartan leadership was also extended among the oli- 
 garchical cities. Though at all periods there were frequent 
 wars and much fighting among the independent cities, the 
 numbers involved in the conflict were not so great as to 
 prevent the increase of population and wealth until the break- 
 ing out of the Peloponnesian war. Sparta and her alliens on 
 one side and Athens and hers on the other, in 431 B.C., en- 
 tered on a struggle for mastery, which involved substantially 
 all the Greeks of the mainland, the islands and the coast of 
 Asia. The struggle became so fierce that each party in turn 
 sought aid from the Persians, and leaders on both sides were 
 corrupted by Persian bribes. The simplicity of manners of 
 the Spartans gave way when brought in frequent contact with 
 the orientals, and their generals were found no more proof 
 against bribery than those of other cities. The social system, 
 however, remained throughout the struggle substantially un- 
 changed. The Athenian democracy, notwithstanding the un- 
 wise and most disasterous expedition to Sicily, manifested 
 most wonderful energy and resourcefulness, and the integrity 
 of its institutions was maintained till 411 B.C. when a con- 
 spiracy of the oligarchical elements resulted in the rulership 
 of a senate of 400 for a few months. This being soon over- 
 turned, the democratic institutions were again restored, and 
 under them the people manifested renewed vigor and devo- 
 tion to the public welfare. The surrender of the city in 404 
 B.C. was followed by the establishment of an oligarchy of 
 thirty, the spirit of whose rule was in marked contrast to that 
 of the democracy. Though in the trial of the generals after 
 the battle of Aegospotami there was a departure from legal 
 forms, and the generals were condemned to death without a 
 
298 EVOLUTION. OF GOVERNMENTS AND LAWS 
 
 regular trial, they still had a hearing before the assembly and 
 were condemned by a vote of the people by tribes. The 
 thirty, however, ordered summary executions without trial, 
 and proceeded to get rid of such of the people as they feared. 
 Their tyranny was in striking contrast to the formal, free 
 and orderly administration of established laws by the magis- 
 trates and dikasts. Though their authority was established 
 with the sanction of the victor in the long and desperate 
 struggle, its exercise was so utterly at variance with the pre- 
 judices and feelings of the people, even of their own partisans, 
 that in the following year they were driven out under the 
 leadership of the returning exiles, and the democracy was 
 restored. While the Peloponnesian war was waged on the 
 part of Sparta to destroy the power of a hated rival, it must 
 ever stand to the credit of the victor that, instead of the de- 
 struction of the city after its surrender, after the destruc- 
 tion of its walls, the city was left uninjured, notwithstanding 
 the demand of some of the allies that it be destroyed and its 
 people scattered. The course of Sparta in this respect was 
 in strict accord with the principle of the Delphic Amphicty- 
 onic league, which tended to mitigate the horrors of war 
 among different Greek cities and prohibited the destruction 
 of a conquered city. This league, religious in character, 
 seems to have succeeded in promulgating, and enforcing in a 
 great number of instances, humane principles mitigating the 
 horrors of war. It was only in holy wars, waged against 
 members of the league charged with some sacrilege, that these 
 humane principles were cast aside and barbaric destruction 
 inflicted without restraint. 
 
 From the close of the Peloponnesian war to the rise of the 
 Macedonian power was a period of frequent wars and varying 
 combinations. Thebes, the ancient enemy of Athens and fre- 
 quent ally of Sparta, under the lead of Epaminondas finally 
 terminated the power of Sparta at the battle of Leuctra. The 
 Persian practice of hiring mercenary troops became preval- 
 ent with Greek cities, which now relied on money rather than 
 on the devotion of their citizens, for offensive and defensive 
 operations. War, instead of being the exercise of patriotic 
 
GREECE 299 
 
 devotion, became a profession, and mercenary bands, fighting 
 tor whomever would pay, became numerous. The ancient 
 spirit, so much admired in subsequent ages, decayed. Greece 
 was still the land of culture, but not of incorruptible heroes. 
 
 In this condition the arts and arms of Philip easily placed 
 him at the head of the Hellenic world. Though neither he 
 nor his son Alexander claimed despotic powers over the Greek 
 cities, both were typical tyrants, recognizing no restraints. 
 At the convention of deputies held at Corinth 330 B.C. Alex- 
 ander was appointed commander of the Greeks for the purpose 
 of prosecuting war against Persia. By the terms of the 
 agreement then made the freedom and autonomy of each 
 Greek city was recognized, and its existing constitution was 
 guaranteed. Violence of one against another was prohibited 
 and freedom of commerce guaranteed. Sparta of all the 
 leading cities appears to have been the only one which did 
 not join. Though this convention effectually bound the cities 
 to Alexander, it utterly failed to place effectual restraint on 
 him, for it provided for the admission into the cities of Mace- 
 donian troops, ostensibly to enforce obedience to the terms 
 of the agreement. Protests against his tyrannies were un- 
 availing. The revolt of Thebes was followed by its capture 
 and the massacre of its people, including women and chil- 
 dren, and the destruction of the city. The severity of the 
 treatment was in accordance with the wishes of the Greek 
 auxiliaries of Alexander's army. With the ascendency of 
 Alexander the independence of Greek cities ended, and the 
 peculiar political conditions under which the people had pro- 
 gressed so rapidly in intellectual development, in literature, 
 philosophy, arts and sciences came to an end, but Greek cul- 
 ture endured and was diffused over Asia by the armies of 
 Alexander and his successors, and over Europe under the sub- 
 sequent empire of Rome. 
 
 No equal number of people in an equal period of time have 
 left so many evidences of intellectual activity as the Greeks 
 from the foundation of Sparta to the time of Alexander. At 
 this day the names of illustrious Greeks of this period are 
 familiar in greater number to the people of Europe and Amer- 
 
300 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ica than those of any other country at any time, with the ex- 
 ception, perhaps, of Rome when at its zenith of power. But 
 the intellectual activity of Greece was far more diverse and 
 extended over a far wider range than that of Rome. 
 
 The Greeks developed the idea of determining controversies 
 by laws declared in advance of the fact and by an impartial 
 tribunal acting on evidence adduced at a public trial with the 
 right to a full hearing in argument on the facts and the law. 
 Individuality and self-reliance were the leading character- 
 istics of the people. Religion and government, though not 
 wholly disconnected, were not merged or confused. The 
 same gods were worshipped by the Greeks of many cities, 
 wholly independent of each other, and the bonds of common 
 religion were always much wider than those of any govern- 
 mental system. Though the religious sentiment was strong, 
 it was in the main disconnected from political sentiment, and 
 the laws passed were based on views of justice and policy 
 rather than on religious sanction. 
 
 Authorities 
 
 Grote : History of Greece. 
 
 Adolph Holm: The History of Greece. 
 
 Thucydides. 
 
 Herodotus. 
 
 Plutarch's Lives. 
 
 Encyclopaedia Britannica. 
 
CHAPTER XIV 
 
 Rome 
 
 The most ancient people of Italy of whom we have any 
 information were in .substantially the same stag.e of develop- 
 ment as the earliest Greeks known to us. They tended flocks 
 and herds and cultivated the soil. They had implements of 
 iron and woven clothing. The relations of the members of 
 a family were clearly defined, and the social organization de- 
 veloped from the germ of the household. Written history 
 does not begin till centuries after the foundation of Rome, 
 and what is known of the earliest days of the city comes 
 through tradition and the evidence of the works which en- 
 dured till letters were introduced. The mythical tale of 
 Romulus and Remus no longer finds believers, and the easy 
 and definite description of the foundation of the city is now 
 impossible. At the time of the first settlements from which 
 the city developed, we fail to find evidences of any social 
 organization which included large numbers of people or ex- 
 tended over a considerable district. Apparently there was no 
 government more comprehensive than that of a clan, and the 
 authority exercised was paternal in character. Rome grew 
 from the clans settled on and about the Palatine hill. The 
 city took more distinct form and character when the walls 
 were constructed on this hill. A discussion of the cornbina- 
 tion of Latin, Sabine and Etruscan elements, to form the city 
 would serve no purpose here. We must start with a consider- 
 able aggregation of people, including those following urban 
 pursuits as well as herdsmen and cultivators of the soil. 
 
 The social organization of the clans did not disappear with 
 the growth of the city, but the early structure formed the 
 basis in this as in most states of that which followed. Though 
 the monogamous family with the rights and duties of each 
 member clearly defined is the product of an advanced social 
 
 301 
 
302 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 stage, it not only existed at Rome in the earliest days, but 
 was the most clearly marked feature of society, and fur- 
 nished the basis of the governmental system. The free family 
 was the social unit. It consisted of a father, who was his 
 own master, a wife whom he had wedded by the priestly cere- 
 mony of confarreatio, their sons and sons' sons and their 
 lawfully wedded wives and unmarried daughters. It did not 
 include the children of a daughter, for if she were married 
 they belonged to the family of her husband, and if not they 
 had no place in the family. All the property of the family, 
 including the slaves, belonged to the man at its head. The 
 power of the father in his household was absolute and con- 
 tinued till death. He could punish wife and descendants even 
 with death. The women of the family were not in fact 
 treated as slaves, however, but within the household were 
 its mistresses. Sons with families might be allowed to man- 
 age a separate property, but in law it belonged to the father. 
 A father might even sell his son as a slave to a foreigner. 
 As a Roman he could not be a slave in law to a Roman, 
 though he might be so in effect. While the father was under 
 no legal restraint in dealing with his family, he was subject 
 to religious anathema in case of gross abuse of his authority. 
 From the family the gens or clan developed, and these were 
 distinguished one from the other only by ability to trace defi- 
 nitely the relationship. Those whose descent could be definitely 
 traced to a common ancestor belonged to the family. Those 
 who merely bore the family name but could not give the chain 
 of de.scent belonged to the gens. Attached to the patrician 
 houses there was a class of dependents, called clients, who 
 sought the protection of the house. The relation of the client 
 was intermediate between that of the slave and the free man. 
 He. was in the power of the patron, who affarded him ground 
 to till or other means of livelihood, appeared for him in any 
 litigation and obtained redress for wrongs committed against 
 him. These client es were regarded as part of the familia and 
 were legally subject to the will of the father, who might, if 
 he chose, exercise the same absolute power over them and 
 their property as over the rest of the family. The father 
 
ROME 303 
 
 was the religious head of the household and conducted the 
 family rites. While the sons in patrician famihes were in all 
 personal affairs subject to the absolute power of the father, 
 they were citizens of the state and as such had equal political 
 privileges and duties. 
 
 Outside the patrician famihes were the plebs, who were 
 protected by the state but had no share in public affairs. The 
 Roman people included three original tribes, the Romnes, 
 Titles and Luceres, and these were divided into thirty curiae. 
 The airia was the primary association with its common 
 sacra, priests, festivals, chapel and hearth. The tribal di- 
 vision does not appear of special importance in the constitu- 
 tion of the state, but the curiae formed the basis of the system. 
 Just when and how they first developed is unknown, but the 
 first view discloses them as including not merely persons re- 
 lated by blood or marriage, but persons not belonging to the 
 gentile families, with membership based largely on occupancy 
 of contiguous lands included within the territory of the curiae. 
 There was great liberality in the admission of citizens of 
 friendly communities, who might be granted the right of citi- 
 zenship by the coniitia on renouncing membership of their 
 native city, otherwise they were regarded rather as guests 
 under protection of the community. 
 
 At the head of the earliest Rome was the king, who stood 
 as father of the city with powers corresponding to those ex- 
 ercised by the father over the gentile family. He was the 
 leader in war and in peace, and the religious head of the state. 
 His powers, like those of the patrician, were absolute in 
 theory, yet restrained by custom and public sentiment. He 
 was chosen from among the fathers and held office for life. 
 He consulted the gods for the public and named the priests 
 and priestesses. He made treaties of peace which bound the 
 community. He alone had the right to address the citizens 
 in their public assemblies, or to name others to do so. He 
 kept the keys to the public treasury, and near his dwelling 
 was the blazing hearth of Vesta and the storehouse of the 
 community. He was judge of the people in all causes civil 
 and criminal and imposed such penalties as he saw fit. From 
 
304 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 a sentence of death he might allow an appeal to the people 
 for pardon, but was not bound to do so. He had the right 
 to levy taxes and call out the military force. While he might 
 appoint subordinate officers and even a viceroy to rule in his 
 absence, all such served subject to his pleasure. He might 
 nominate his successor, who was confirmed by the freemen in 
 a public assembly convoked for the purpose. In case of the 
 death of the king without naming a successor the senators, 
 (patres), met and named an interrex from their number, who 
 ruled not more than five days. He then named a successor 
 according to an order of succession fixed by lot for a like 
 term. This second interrex might then name a successor for 
 life. The king thus named was then accepted in the public 
 assembly by the citizens old enough to bear arms and after- 
 ward confirmed by the senate. When the people were as- 
 sembled at the summons of the king to decide on any public 
 matter, they met in the comitium at the north end of the 
 forum and were presided over by the king or interrex who 
 put the questions. Each curia voted separately, a majority 
 determining its vote, and a majority of the curiae decided the 
 question. While they had no power to pass laws or restrain 
 the power of the king, the disposition of property by will or 
 the renunciation of family or gentile sacra could only take 
 place in the public assembly, and adoption into the family 
 required their assent as well as presence. The senate was 
 made up of fathers of the gentile houses, but did not include 
 all of them. The general theory of the organization of the 
 state was that each of the tribes was divided into ten curiae, 
 that a curia included ten clans or one hundred households, 
 and that each household furnished a foot soldier, each clan 
 a horseman and a senator. The ten curiae of each tribe fur- 
 nished one hundred senators, or three hundred in all. While 
 the number of clans and households is thus definitely stated, 
 they could not in the nature of things remain constant, and 
 the numbers given may not be accurate for any date, but the 
 curiae were definite divisions of the state and continued as 
 political units. Each curia had its warden (curio), and its 
 priest (flamen curialis). Vacancies in the senate were filled 
 
ROME 305 
 
 by appointment of the king. The powers of the primitive 
 senate are not readily comprehended. As the heads of their 
 famihes they were the chief men of the state, each ruHng his 
 own family, slaves and clients. Collectively their govern- 
 mental functions appear very limited, except in the matter of 
 providing a king, yet they held a veto on changes in the con- 
 stitution of the state proposed to the assembly by the king 
 and adopted by it. Though there was no written constitution, 
 the senate in a negative manner by its veto might declare what , 
 the fundamental law was. In theory the king was absolute, r^ 
 yet the organization of society was such that despotic powers 
 were denied him. The citizens were by no means slaves to the 
 king, but rather his equals, from whose number he had been 
 chosen. He held his office under no claim of divine right 
 but of regular selection. The vigor of the unwritten consti- 
 tution was due to the spirit and moral influence of the mono- 
 gamous Roman families, and the need of the king for the 
 counsel and support of the citizens in the assembly and the 
 senators in council. The king had his subordinates to execute 
 his commands, but the military power of the state rested in 
 the body of citizens, who were soldiers only on emergency, 
 and the senate might veto a war of aggression. Though in 
 theory the powers of the senate in its earliest days were ex- 
 ceedingly limited, the influence of such a body of men must 
 always have been great, and subsequent history demonstrates 
 how that influence developed into recognized authority. 
 
 In dealing with the earliest constitution of Rome we are 
 forced to rely much on inferences deduced from the state of 
 society at later periods, when we have a clearer and more 
 authentic view of it, and on traditions passed down from 
 earlier times. The division of the people into the patrician 
 families with their clients and slaves and plehs, who were yet 
 not citizens nor slaves, is explained on the theory that the 
 patricians were of the stock of the earliest founders of the 
 community and that others, brought in from conquered dis- 
 tricts or voluntarily settling in the city, were protected by the 
 state though given no share in public affairs. The ranks of 
 the plehs were also augmented by manumitted slaves and 
 
3o6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 clients and their descendants, who became detached from the 
 households of their patrons. As in the earliest times the 
 warriors were taken from the citizens only, the numbers of 
 the plebs, who were allowed to have families and acquire 
 property, increased much more rapidly than those of the 
 patrician stock. Though in our day great stress is laid on the 
 efficacy of written constitutions and formal legislative enact- 
 ments, the early history of Rome exhibits in a striking man- 
 ner how accepted principles may govern effectually without 
 any written constitution or laws, and how a government may 
 be in form and theory despotic, yet effectually curbed in many 
 ways. The real living law is that which is generally observed 
 and enforced, rather than that which, though promulgated by 
 the recognized law-making power, is yet disregarded in actual 
 practice. 
 
 The rules which the Romans recognized as authoritative 
 were classified under the heads of fas, which was conceived 
 to be the laws promulgated by the gods, jus, which signified 
 established human customs and regulations, and boni mores, 
 which expressed the general public sentiment with reference 
 to personal conduct. Fas, which was accepted as the will of 
 the gods, regulated religious ceremonials, which constituted 
 a most important element in both public and domestic life. 
 It went much farther, however, and furnished precepts re- 
 garded, as binding, not merely on the people of the state in 
 their intercourse with each other, but on all mankind. It 
 forbade war without the prescribed ceremonial, through which 
 the gods were supposed to be consulted. It enjoined faith to 
 be kept with enemies, when under sanction of an oath, and 
 hospitality to foreigners. It punished murder; the sale of a 
 wife by her husband; the resistance by children of the author- 
 ity of their parents; incestuous connections; false oaths and 
 broken vows; and the displacement of boundaries and land- 
 marks. All these were regarded as offenses against the sacred 
 ordinances of the gods. For minor offences expiation was 
 allowed, but for the graver ones the heavy penalty of excom- 
 munication was imposed. The outlaw — homo sacer — was an 
 outcast with whom it was pollution to associate, who could 
 
ROME 307 
 
 take no part in public affairs, civil or religious, and whom any 
 one might kill with impunity. Jus was based mainly on long 
 established customs, recognized as binding, and in the early 
 days only to a small extent on rules proposed by the king and 
 adopted by the people in the assembly of the curiae. Boni 
 mores related to the demeanor and obedience of inferiors to 
 superiors, chastity, fidelity to engagements and the like, and 
 were enforced by the pater familias, the elders of the gens and 
 the king. 
 
 With the early Romans marriage was a solemn religious 
 duty. The happiness of the dead in a future state was be- 
 lieved to depend on the due observance of funeral obsequies 
 and other rites for the good of their souls, which could only 
 be performed by descendants of the deceased. The choice of 
 the man was limited to a woman with whom he had a right 
 of intermarriage. The wife of a patrician must be either the 
 daughter of a patrician or a woman of an allied community. 
 In taking her as his wife he detached her from her family and 
 its household gods, to become a part of his family and under 
 the hand of the head of the household. This must be done 
 with the approval of the gods, consulted through auspicia. 
 The ceremony was a religious one, conducted by the high 
 priest in presence of ten witnesses representing the ten curiae 
 of the bridegroom's tribe, and was called confarreatio. By 
 this ceremony she and all her property passed in manum, 
 under the hand of the head of her husband's home, and thence- 
 forth she and all that came with her were his property. The 
 religious feelings of the heads of Roman families were such 
 that the theory of the despotic rights of the father was pro- 
 ductive of little if any evil. The father was dependent on 
 the son for those religious offices which were so highly es- 
 teemed, and mutual dependence as well as natural affection 
 seem to have made the early Roman families high types of 
 domestic circles. In case of the unfortunate failure of issue 
 or loss of all sons, threatening the extinction of the family, 
 the father might provide for its perpetuation by adrogation 
 or adoption. By the former the pater familias of another 
 household was transferred to become the son of the adrogator 
 
3o8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and thereby permitted his own family to be nominally ex- 
 tinguished. This could only be done with the approval of 
 the pontiffs and the sanction of the curiae. The adrogatee 
 and all his family and property passed under the power of 
 the adrogator. In case of the adoption of the son of another 
 pater familias the form was more simple, requiring the con- 
 sent of the father of the adopted son. The plehs contracted 
 marriages by consent, but were incapable of the religious 
 ceremony of confarreatio with its legal consequences, nor 
 were they allowed to perpetuate their families by adrogation 
 and probably not by adoption. 
 
 In the earliest times there was private tenure of land, but 
 there were also public lands belonging to the state. To what 
 extent lands were held in common by the clans, if at all, can- 
 not be stated. The plebs were allowed to acquire and hold 
 land as well as the patricians. The law of inheritance gave 
 the property of the deceased to his children and widow 
 equally, sons and daughters sharing alike, except that a daugh- 
 ter, married and thus a member of her husband's family, had 
 no share. This equality was materially modified however by 
 the guardianship^ under which the widow and unmarried 
 daughters passed, exercised by their nearest male relation; 
 thus the sons became guardians of their mother and sisters. 
 In default of widow and children the inheritance went to the 
 gens. The succession might be changed by a testament, exe- 
 cuted in the assembly of the curiae, or in the presence of 
 comrades on the eve of battle. Among the piebs the inheri- 
 tance passed to the children, but in the earliest times not to 
 collateral relations, and they were without legal capacity to 
 make a will. 
 
 In the earliest days money was not in use, and there was 
 hardly such a thing as the law of contracts in the modern 
 sense. As in most primitive communities, possession and 
 ownership were usually concomitant, and for invasion of his 
 possession the owner usually asserted his rights in person. 
 The dividing line between private wrongs and public offenses 
 was not clearly drawn. The tendency was to confuse them 
 and treat all matters brought before the judge as of a crimi- 
 
ROME 309 
 
 nal character. Nor was the punishment of crime exclusively 
 the province of the king or judge. In case of murder it was 
 the kinsman of the person murdered who avenged his death. 
 So too the husband or father might kill wife or daughter and 
 her paramour caught in adultery on the spot, but if he de- 
 layed till his blood cooled he could then proceed only in his 
 domestic tribunal. 
 
 The early procedure was simple: the accused on trial for a 
 criminal offence or the parties to a private suit came before 
 the king at the judgment platform. He was attended by his 
 lictores (messengers). The facts were ascertained by the 
 confessions of parties and the testimony of witnesses with- 
 out the use of torture, except on slaves. Among capital of- 
 fences were treason, violent sedition, parricide, wilful murder, 
 sodomy, violation of a maiden, arson, perjury, carrying away 
 the harvest by witchcraft and unlawfully cutting the corn in 
 the sacred fields by night. The king might hear and pro- 
 nounce judgment alone or on consultation with advising sena- 
 tors, or might depute the power to others. There were 
 trackers of murder, quaestores parricidii, whose duty it was 
 to arrest murderers. The mode of inflicting the death sen- 
 tence was by throwing down from the capitol hill, hanging, 
 burning or drowning. Pardon could only be granted by the 
 people on an appeal to them, which the king was at liberty 
 to allow or refuse. The culprit's life was spared, if on his 
 way to execution he accidentally met one of the vestal virgins. 
 For minor offences fines of cattle were imposed or the culprit 
 was scourged. For serious injuries the wronged party was 
 entitled to retaliation, eye for eye, etc. For thefts and other 
 injuries to person or property compensation was usually 
 awarded. 
 
 Under Servius Tullius important changes were made in the 
 organization of the state. These, though induced mainly by 
 military considerations, had a most important influence in 
 later years on the civil institutions, and on the relations of 
 the plcbs and patricians. A census was taken, registering the 
 citizens with the numbers in their families, and showing the 
 value of their lands and holdings. This census was revised 
 
310 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 periodically. Transfers of lands to be recognized were re- 
 quired to be made publicly under certain forms or by sur- 
 render in a court before the supreme magistrate. This form 
 of conveyance was called niancipium and continued in use till 
 the time of Justinian. All freeholders from seventeen to 
 sixty years old, whether patricians or plebs, were equally 
 liable to military duty and were divided into centuries, classes 
 and tribes without reference to the old divisions. The cen- 
 tury of one hundred men became the unit, and the centuries 
 were arranged in classes, the front rank including the wealth- 
 ier and therefore best armed class, the second and third of the 
 grades below and the fourth and fifth made up of the poorer 
 citizens, who served as light armed troops. The cavalry was 
 similarly dealt with and drawn from the most opulent citi- 
 zens. Old men, unmarried women and boys holding land, 
 were required to contribute equipments and fodder for cer- 
 tain ones. Non-freeholders had to supply workmen and 
 musicians for the army, as well as substitutes, who marched 
 with the army and took the places made vacant in the ranks 
 by illness, death or other cause. For the purpose of making 
 the levy the city and its suburbs were divided into four parts, 
 superseding the old triple division. Each quarter contributed 
 equally one-fourth part of the whole and of each of its mili- 
 tary subdivisions, so that each legion and century was made 
 up from all four parts. The whole military population was 
 divided into a first and second levy, the first or juniors in- 
 cluding those from the seventeenth to the forty-sixth year, 
 who were usually the active force, while the seniors acted as 
 home guards. The military unit was the legion of 3,000 men 
 in six ranks, to which were attached 1,200 unarmed velites. 
 The normal force consisted of 16,800 men in the infantry and 
 1,800 horse. From the time of this reorganization it was the 
 centuries whose consent the king asked before waging a war 
 of aggression, instead of the assembled patricians, and • the 
 centuries who authorized the testaments of soldiers before 
 going into battle. Political power thus came to be exercised 
 by the plehs as a natural sequence of their assuming the bur- 
 den of military service. At the time of these changes the 
 
ROME 311 
 
 population and territory of the city had been increased, and 
 included probably not less than 100,000 people. From the 
 earliest days the leading characteristic of the Roman state 
 was its military spirit and superior organization for war. 
 Another regulation of Servius, which continued in effect till 
 the time of Justinian, was that which prescribed the mode of 
 transferring the title to lands, houses, rights of way, aque- 
 ducts, slaves and domestic beasts of burden, which were styled 
 res mancipi. The transfer was required to be made in pres- 
 ence of five citizens as witnesses and a libripens holding a 
 pair of scales. The vendee, with one hand on the thing pur- 
 chased or a symbol of it, declared it his by purchase with a 
 piece of money which he held in the other hand, and with 
 which he struck the scales and then handed it to the seller as 
 symbolical of the price paid. The actual weighing out of 
 the copper before coined money was used, or payment of the 
 whole price in later times, does not seem to have required the 
 presence of witnesses. This mode of transfer, called manci- 
 pation, was primarily established in connection with the 
 census, in order that the ownership of property might be defi- 
 nitely established and the classification of citizens based on it 
 secured against errors. Other forms of property classed as 
 res nee mancipi could be sold and title given by delivery, but 
 a full title to res mancipi could only be given by this formal 
 transfer or surrender in court. A similar formality was soon 
 adapted to other forms of contract including emancipation, 
 coemption and plebian alienation mortis causa. 
 
 While the date of the foundation of Rome is generally 
 fixed about 753 B.C. there seems but little on which to base 
 any definite statement about it. The kingly form of govern- 
 ment continued till the reign of Tarquin the Proud, who was 
 expelled with all his clan by the Roman people because of his 
 tyrannies. This occurred about the close of the sixth century 
 B.C. The wars waged by him to recover the throne ended 
 with the battle of Lake Regillus, which is said to have occur- 
 red in the year 497 B.C. and to be the first authentic date in 
 Roman history. However this may be, the fact of expulsion 
 is undoubted, and that the people had become so thoroughly 
 
 k 
 
s. 
 
 312 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 disgusted with kingly rule that they swore that no king should 
 ever again rule in Rome. The title of king was retained for 
 the high priest, rex sacroriim, who succeeded only to some of 
 the religious functions of the former kings. In place of a 
 single king two consuls were chosen, to hold office jointly for 
 a single year. They were elected by the citizens in the as- 
 sembly, comitia, of the centuries from among the patricians, 
 formally invested with authority by a vote of the curiae and 
 confirmed by the senate. Under the new constitution laws 
 were first proposed to the comitia of the centuries, and, if 
 adopted, were in like manner approved by the curiae and the 
 senate. The consuls succeeded to the temporal power of the 
 kings, and each of them possessed these rights in full and 
 became a check on the other. While the plebeians thus be- 
 came admitted to a share in naming the consuls and making 
 the laws, the actual direction of affairs was still in the hands 
 of the patricians, who presided in the comitia, and from whose 
 ranks the consuls must be taken. The right of appeal from 
 capital sentences and sentences to corporal punishment other- 
 wise than by martial law was no longer left optional, as under 
 the kings, but was made absolute. While the consuls suc- 
 ceeded to the judicial powers of the kings, they were subject 
 to restrictions. Causes were commenced before the consuls, 
 but in civil cases and murders prosecuted by the quaestors the 
 consul was required to commit to trial before deputies ap- 
 pointed by him. 
 
 The consuls did not succeed to the power of nominating 
 the priests but the college of priests filled vacancies in their 
 own ranks and also named the vestals and single priests and 
 named a president, the Pontifex maximus. In extraordinary 
 emergencies either consul had power to name a dictator, who 
 exercised the full power of both consuls, but his powers 
 ceased at the end of the consulate and could not continue for 
 a period of over six months. In war he commanded the 
 infantry and was bound to name a master of the horse, who 
 held for a like term. 
 
 The king, holding for life, had been above accountability 
 for any of his acts, but the consuls after the expiration of 
 
ROME 313 
 
 their terms of office were subject to trial for offences com- 
 mitted against the law as other citizens. The old privilege of 
 the king, to have his fields cultivated by task work of the 
 citizens and protected dwellers in the city, ceased on the 
 termination of life tenure. With the change in the constitu- 
 tion the power of the citizens enrolled for military service was 
 further increased, and the assembly of the centuries became 
 the most potent political body in the state. A change also 
 took place, in the curiae, which thereafter included all free- 
 men of the city, slaves and citizens of other communities who 
 stood in the situation of guest of the city being the only 
 cka^es excluded. 
 
 X The senate retained in the main its former powers and 
 composition, but was no longer made up exclusively from the 
 patrician order. Plebeians were admitted under the name 
 conscripti, not however with full rights as senators. The 
 consuls while in office had no vote in the senate. They filled 
 vacancies whether from among the patres or the pkbeian con- 
 scripti, the whole number of both still remaining 300. It 
 became the custom to revise the roll on taking the census, 
 which occurred every fourth year. The patricians still re- 
 tained the exclusive eligibility to the consulate and civil 
 magistracies, as well as the priesthood, and the privilege of 
 joint use of the public pastures. The practice, commonly fol- 
 lowed under the regal constitution, of consulting the senate on 
 matters to be proposed in the assembly, became a settled cus- 
 tom, and the senate also gained a most important power by 
 taking away from the consuls the control of the public treas- 
 ury and putting it in charge of two subordinate magistrates 
 nominated by the consuls. The expenditure of the public 
 rnoneys could only be made with the consent of the senate. 
 On the whole the position of the senate was strengthened at 
 the expense of the executive head, but the plebeians also gained 
 advantages. The development should not be looked at from 
 the narrow standpoint of advantage to one class or the other. 
 Rome was a growing power, and the elements of which it 
 was composed were asserting their strength, not merely in 
 the interests of their respective classes, but for the' advance- 
 
314 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ment of the whole. Among the regulations favorable to the 
 poor were reductions of the port dues on grain and interven- 
 tion of the state to secure corn and salt for the multitude at 
 reasonable prices through state monopoly. A singular regu- 
 lation with reference to fines was that which prohibited a 
 magistrate from fining the same man on the same day to 
 the extent of more than two sheep or thirty oxen without 
 granting leave to appeal; thus apparently placing the poor 
 shepherd and the rich herdsman soniewhat on an equality 
 in this particular. 
 
 In the collection and disposition of the public funds the 
 system of farming the revenue was adopted, by which a col- 
 lector payed a fixed sum to the state and collected in his own 
 interest from the people. Public works were also carried on 
 through contractors, who made large profits on the labor 
 employed. The use of the public lands for grazing purposes 
 was claimed by the patricians as their right, to a share in 
 which however some wealthy plebs were admitted. This had 
 been subject to the payment of a moderate tax, but the col- 
 lection of this by the patrician quaestors was gradually omit- 
 ted. When new domains were acquired, it had been the cus- 
 tom to assign the tillable land to the poorer people, retaining 
 the rest for pasture. A system grew up of allowing an oc- 
 cupant to take possession for an undefined term, subject to 
 the payment of one-tenth the grain and one-fifth the oil and 
 wine. This system of occupation was allowed indefinite ex- 
 tension, and naturally inured entirely to the benefit of the 
 ruling classes, and the collection of the state's share was also 
 soon neglected. The wealthy citizens became farmers on a 
 large scale. Small land owners, who were heavily burdened 
 with taxation, fell in debt and under the power of their credi- 
 tors, which was greatly abused. On their return from a suc- 
 cessful war under the dictatorship of Marcus Valerius the 
 poor landholders, who constituted the strength of the army, 
 demanded mitigation of the rigor with which creditors en- 
 forced their demands and other reforms in the government, 
 and refused to disband until their rights were secured. The 
 senate at first refused. The army under leadership of the 
 
ROME 315 
 
 military tribunes went into camp between the Tiber and the 
 Aino and threatened to estabHsh there a city of their own. 
 An agreement was finally made granting temporary relief to 
 the debtors and providing for some of the poor farmers in 
 colonies that were established, but the most important con- 
 cession was that which placed by the side of the two patrician 
 consuls two plebian tribunes, elected by the plebians assembled 
 in curies. The tribunes were given the power to nullify the 
 commands of the consuls by a protest properly tendered. The 
 tribunes also were given jurisdiction to try and determine 
 criminal causes, and in case of an appeal from their decision 
 the right to defend it before the people. They also had the 
 important power of assembling and addressing the people and 
 submitting resolutions for their adoption. The tribunes could 
 not prevent the other magistrates from pronouncing sentence, 
 the senate from adopting a decree, or the centuries from giv- 
 ing their votes, but they could discharge the debtor from ar- 
 rest and exempt the citizen from enforced military service. 
 That the aid of the tribunes might be always accessible, they 
 were prohibited from spending a night out of the city and 
 required to leave their doors open day and night. They could 
 summon any citizen before them for trial, even a consul in 
 office. Their process was served by two aediles appointed to 
 attend them, and they were aided by ten men for lawsuits, 
 whose precise powers cannot be stated. An appeal from the 
 judgment of a tribune went, not to the whole body of citi- 
 zens, but to the whole body of plebians, who met and voted 
 by curies. Only against a dictator were the tribunes power- 
 less to interpose. As might readily be foreseen this arrange- 
 ment invited conflict of authority and tended to violence when 
 partisan spirit was high. The tribune Gnaeus Gemicius, who 
 had called the two consuls to account, was found murdered 
 in his bed on the day fixed for the impeachment. This cir- 
 cumstance led to the passage of the Publilian law, which 
 provided for a plebian assembly of tribes and the plebiscitum. 
 The plchs had theretofore adopted resolutions by curies, vot- 
 ing man by man without distinction of estate, and, as the 
 clients of the patricians were entitled to vote in these, the 
 
3i6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 influence of the patrician clans was often controlling. The 
 Roman territory was now divided into twenty-one districts 
 designated as tribes, but with fixed territorial boundaries. In 
 the tribes the voters were the plebeian freeholders only, each 
 of whom had one vote, no matter what the extent of his hold- 
 ing. Thus the patricians and residents who were not free- 
 holders were excluded. The enactments of these meetings, 
 when previously approved by the senate, had the force of law 
 and were of equal validity with those adopted by the centuries. 
 After much contention and many proposals of reform, about 
 the year 454 B.C. a Decemvirate was established in place of 
 the consuls, to which plebians as well as patricians were eligi- 
 ble, and the tribunate was suspended for the time. An em- 
 bassy was sent to Greece to obtain the laws of Solon, and 
 after their return the decemvirs were chosen, all of whom 
 were patricians. The purpose of the decemvirate was to es- 
 tablish a written code of laws for the protection of the people 
 against arbitrary and discretionary power. As this code was 
 not completed within the term of the first members, a second 
 set was chosen, including some plebeians. The product of the 
 labors of these officials was the first ten of the famed XII 
 tables of the Roman law. Others were chosen the following 
 year, who added the other two, all of which were duly ratified 
 by the people and engraved on tables of copper and af^xed 
 in the Forum to the rostra in front of the senate house. This 
 famous code is preserved to us only in fragments, gathered 
 here and there from the writings of men of later times. A 
 summary of them is given in the Appendix. 
 
 How much or how important the omitted parts of this 
 famous code may be it is impossible to tell, but enough is 
 preserved to show the crude and barbarous customs of the 
 time and also the earnest efifort for better and more humane 
 regulations. For punishments, death, bodily injury and fines, 
 for the collection of debts the person of the debtor was seized, 
 and he stood on the level of a criminal. Slavery was recog- 
 nized, yet at the same time among citizens special privileges 
 were prohibited. Publicity and impartiality in all trials were 
 enjoined. The truth was to be ascertained from witness 
 
ROME ■ 317 
 
 and without torture. There is a tinge of superstition here and 
 there but httle sanction for priestly tyranny. Taken as a 
 whole it exhibits the germs of the system of written laws, 
 which has since prevailed throughout Europe, commingled 
 with the crudities and barbarities of a small warlike commun- 
 ity, constantly struggling with its neighbors for existence. 
 The decemvirate, having completed its labors in the enactment 
 of the code, was not gotten rid of without strife and turmoil. 
 Consuls and tribunes were again chosen, and it was decreed 
 that thereafter every magistrate, even a dictator, should allow 
 an appeal in capital cases. The tribunes were admitted to 
 share in the discussions of the senate, and any resolution of 
 the senate or assembly might be arrested by them. Soon after 
 445 B.C. the Canuleian law broke down the strict social di- 
 vision, which had been maintained between the orders, and 
 declared marriages between patricians and plebeians lawful as 
 true Roman marriages and that the children should take the 
 rank of the father. It was further provided that in place of 
 the consuls six military tribunes should be chosen with the 
 powers and for the terms of consuls. As under the military 
 system all citizens liable to military service were eligible to 
 military commands, this in effect opened the consular office 
 to all plebians liable to service. This was not a permanent 
 arrangement, but year by year there was a struggle to de- 
 termine whether consuls or tribunes should be chosen, usually 
 resulting in favor of the latter. In 435 B.C. the making up 
 of the census, which had theretofore been the province of the 
 consuls, was entrusted to two censors, nominated from the 
 patricians by the centuries for a period of not more than 
 eighteen months. To them was confided the power to fill 
 vacancies in the senate and even to remove the names of un- 
 worthy ones from the lists of senators and eqiiites. There 
 were four quaestors in charge of the public money, two for 
 the city nominated by the consuls, and two for the army by 
 the tribes, but all taken from the patricians. In 421 B.C. the 
 nomination of the city quaestors passed to the assembly of 
 the tribes, the consul merely superintending the election, and 
 plebeians became eligible. Granting eligibihty was not equiv- 
 
3i8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 alent to conferring the office, and the patricians still con- 
 tinued to fill most of the magistracies. The wealthy plebs 
 struggled to advance their own political privileges quite as 
 much as to better the condition of the poor. There were not 
 only patricians and plebs, but among the plebs there were 
 the freeholders and the proletarii, and beneath all the slaves, 
 who were without political rights and for whose welfare as 
 a class no party ever labored. During the struggle between 
 patricians and plebs the division was not so much between 
 rich and poor or between freeholder and non-freeholder, as 
 between patrician privilege on the one hand and plebian free- 
 holders on the other, but the plebeian leaders gave some heed 
 to the cries for relief coming from the small farmers and 
 laborers. In 378 B.C. the tribunes Gains Licinius and Lucius 
 Sextius submitted a proposal, first to abolish the consular 
 tribunate and to thenceforth require that at least one consul 
 should be a pleb; second to open to the plebians admission to 
 the priestly college of custodians of oracles and to increase 
 the membership to ten; third to allow no citizen to maintain 
 on the common pasture more than one hundred oxen and five 
 hundred sheep, or to hold more than five hundred jngera 
 (about three hundred acres) of the domain lands; fourth to 
 oblige landlords to employ in the fields free laborers in pro- 
 portion to their slaves; fifth that debtors should be allowed a 
 deduction of the interest which had beeri paid from the prin- 
 cipal of their debts and terms for the payment of the balance. 
 After eleven years the senate yielded and these proposals were 
 adopted. Following these reforms the judicial power was 
 detached from the consuls and vested in a special officer, the 
 praetor, and the supervision of the markets, the police duties 
 connected therewith and the celebration of the city festival, 
 were conferred on two newly created aediles, called by way 
 of distinction from the plebeian aediles, aediles cuniles. These 
 offices were soon opened to plebs and patricians alternately, 
 and within a few years plebs were made eligible to the dicta- 
 torship and office of master of the horse and to both censor- 
 ships, and the patricians by law excluded from one censor- 
 ship. Through these various offices the plebs not only gained 
 
ROME 319 
 
 admission to the senate, but those who had filled the offices 
 of consul, praetor and ciirule aedile were summoned to give 
 their opinions on matters before the senate in the order named, 
 whether plebs or patricians, and the other senators merely 
 voted on the division. Afterward the priestly colleges of 
 pontifices and augurs were opened to the plebs. The senate 
 lost its veto power on laws passed by the assembly, and at 
 length it was provided that decrees of the plebs should have 
 equal force with those of the whole people. This happened 
 about 286 B.C. and witnessed the termination of the main 
 contention between plebs and patricians. It had previously 
 been enacted (339 B.C.) that the senate should give its sanc- 
 tion to all laws before submission to the people, which in a 
 bt;ief time practically deprived the senate of its veto. 
 
 The Roman government as thus constituted, and as it con- 
 tinued without substantial change till the time of the Caesars, 
 vested the law-making power in three popular bodies, either 
 one of which exercised its powers without action by the other, 
 and each of which included in its membership a large propor- 
 tion of the members of the other bodies. These were the 
 comitia of the centuries which corresponded with the soldiery 
 acting in their civil capacity, the concilium plebis, made up of 
 the whole body of the plebs, voting by tribes, and the comitia 
 trihiita of the whole body of the people, also voting by tribes. 
 The membership of the comitia of the centuries was based on 
 a property qualification, that of the other bodies was not. 
 This body at first could be convened and presided over only 
 by a consul, but afterward the censors had power to convoke 
 it for matters relating to the census and the praetor for state 
 trials. The procedure in the passage of a law by the comitia 
 of the centuries by which the XII tables were enacted was, 
 first publication of the proposed law two weeks before the day 
 appointed for the vote, during which time meetings were 
 sometimes held for its discussion; second, on the appointed 
 day the auspicia were taken by the presiding magistrate, as- 
 sisted by an augur which, if favorable, were followed by sum- 
 moning the people by blast of the trumpet to attend prayer 
 and sacrifice offered by the president, pontiffs and augurs. A 
 
320 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 final discussion might then follow, at the conclusion of which 
 the citizens marched to the Campus Martius where the call 
 was read and, if no portent from heaven intervened, the 
 question was then put, ''Is it your pleasure Quirites to hold 
 this as law." The vote was taken by centuries, those of the 
 knights and freeholders of full valuation being taken first. 
 If these were unanimous the vote went no farther, as they 
 constituted a majority. Prior to the Publilian law the con- 
 sent of the senate was still necessary, but afterward it was 
 not. In the concilium plebis it was not necessary to consult 
 the gods by taking the auspicia. It could be convened and 
 presided over by a tribune or an aedile, and its resolutions re- 
 quired no confirmation by the senate. 
 
 The comitia tributa was convened by a patrician magistrate, 
 and before it could proceed the auspicia had to be taken and its 
 enactments required confirmation by the senate. When so 
 confirmed they bound the whole people, while those of the 
 concilium plebis bound plebs only until after the Hortensian 
 law. The struggle of the classes, through which the govern- 
 mental system was evolved, was contemporaneous with the 
 struggle with external foes through which the number of the 
 people, the possessions and power of the state steadily ad- 
 vanced. From a kingly government of a small community, 
 based on the idea of absolute paternal authority, a populous 
 state was formed with the power of making laws definitely 
 lodged in the mass of the people; with the idea of written 
 law to settle private rights and direct the action of ofificials 
 clearly comprehended and adhered to, and with a distribution 
 of powers among executive, administrative and judicial of^- 
 cers designed to render one a check on another. Publicity in 
 trials and the right of appeal were shields against the arbi- 
 trary exercise of power; but more than this the brief terms of 
 of^cers, in whom the powers most subject to abuse were con- 
 fided, made systematic tyranny impossible, though it could 
 not prevent instances of it. That this security might not be 
 impaired by successive elections, it was ordained 342 B.C., 
 that the same person should not again administer the of^ce 
 until after an interval of ten years. This rule was not rigidly 
 
ROME 321 
 
 enforced, however, but in extraordinary emergencies was 
 disregarded. 
 
 The long struggle between classes resulted in overthrowing 
 the exclusive privileges of the patricians and in wresting the 
 power to make laws from the representatives of that order, 
 but instead of weakening the influence of the senate, it greatly 
 strengthened it. A senate made up of the heads of patrician 
 houses only would, in a state rapidly increasing in population 
 from the elements absorbed by the plebeians, not only have 
 become less representative and therefore less influential, but 
 would inevitably have lost its vigor by reason of its ex- 
 clusiveness. The opening of the senatorial list, not only to 
 plebeians who were elected to the principal offices, but also 
 to such citizens of distinction as the censors might name, 
 made of the senate a body which included the most vigorous 
 and influential men to be found in the state. Distinction in 
 public service, as well as family and wealth, gave access to 
 a seat in it. It was the only select political body in which 
 affairs of state were discussed and policies formulated. Sub- 
 stantially all important public measures, aside from those 
 which were the subject of dispute between patricians and 
 plehs, were first aired and formulated in the Senate. It was 
 the senate that proposed general policies for the advancement 
 of the power of Rome. It supervised the administration of 
 affairs at home and in the colonies and subject communities. 
 It determined all questions relating to war, peace, alliances, the 
 founding of colonies, the allotment of lands, the erection of 
 buildings and the system of finance. It issued annually gen- 
 eral instructions to the magistrates, fixing the number of 
 troops and amount of money at the disposal of each. The 
 treasurers could make no payment to a magistrate other than 
 a consul except on the order of the senate. Even the power 
 of the tribunes was finally turned to strengthen the position 
 of the senate, after they were admitted to seats in it and to 
 take part in its deliberations. Though the senate was not 
 strictly an elective body, and though its members continued 
 for life, its ranks were constantly recruited from consuls, 
 praetors, aediles and other magistrates, whose merits had 
 
322 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 been recognized by the people, and who took their seats by 
 virtue of that recognition. The Senate under the kings was 
 an assembly of elders, whom the kings were accustomed to 
 consult rather for the inherent value of their counsel than on 
 account of any obligation to follow it, and though we no- 
 where find any enactment formally conferring powers on the 
 senate after the expulsion of the Tarquins, it little by little 
 assumed and exercised, as its prerogatives, those powers which 
 were not lodged elsewhere/ The people were its superiors so 
 far as the power to pass laws was concerned, but the field 
 actually covered by their enactments was narrow as compared 
 with the vast range of subjects of which the senate took cog- 
 nizance. Even where a law of the people existed, the senate 
 sometimes swept it aside for the time being, if it stood in its 
 way. Thus the political head of Rome from the end of the 
 monarchy till the establishment of the empire was the senate. 
 Under its guidance the leadership of Rome was first extended 
 over Latium, then step by step over Italy and afterward over 
 all the countries comprising its vast empire. 
 
 The struggles of Rome with the other Latin communities 
 began in its infancy, when it was not marked out as first in 
 power. In time it conquered Alba, which had theretofore 
 been the chief town of the Latins. The earliest union of 
 other Latin communities with Rome was not as subjects nor 
 as an integral part of a single state, but as allies on something 
 like equal terms, and at length with the confederated Latins as 
 one party to the compact and Rome as the other. The citi- 
 zens of each community were accorded equality of right to 
 acquire land and chattels, to trade and marry in any other. 
 This relation, formed during the existence of the monarchy, 
 continued under the republic. With the growth of Rome the 
 relative importance of the smaller communities diminished and 
 all leadership centered in Rome, which gathered to itself the 
 urban elements, the trades and industries which naturally 
 centered in a city. The limits of the city were extended as 
 a necessary consequence of its increase in population, and 
 the number of tribes increased from four covering the ancient 
 wards of the city, to twenty-one spreading over rural districts. 
 
ROME 323 
 
 By the terms of the compact between the confederacy and 
 Rome they shared equally in lands acquired by conquest, and 
 thus the boundaries of each were contemporaneously extended, 
 but about 384 B.C. the limits of the confederacy, which then 
 included thirty voting members, were closed, and a policy, 
 thereafter steadily pursued, was inaugurated, by which new 
 communities were prohibited from aUiance and intercourse 
 with each other and bound as closely as possible to Rome. 
 Roman citizenship was conferred on those in new settlements 
 or acquisitions in preference to the priviliges enjoyed by the 
 Latin communities. 
 
 yThe leadership of Rome, which at first carried with it no 
 dominion over the allies, little by little was converted into 
 rulership, so far as all matters relating to external policy were 
 concerned. The creation of new communities allied to the 
 Latin confederacy would have stood in the way of the ex- 
 tension of the dominion of Rome. From the settlements on 
 the Roman hills proceeded other neighboring settlements, to 
 whose members the full rights of Roman citizens were ac- 
 corded. By treaties or decrees the right of full citizenship 
 was conferred on subjugated towns and new settlements more 
 distant from the city. Revolts of some Latin towns were 
 punished by taking from them their separate organizations and 
 incorporating them as integral parts of the Roman state. 
 There were other communities on which were conferred Ro- 
 man citizenship without the right of suffrage. They were 
 entitled to all the legal rights and protection of other citizens, 
 and alike subject to military service, but merely could not vote 
 or hold office. Other people, attached to Rome as a result 
 of war, were granted rights and ruled in such manner as 
 might be determined by treaty or by the Romans. There were 
 thus, during the extension of the power of Rome over Italy, 
 four classes of communities: i. Roman with full Roman citi- 
 zenship; 2. Latins with municipal freedom and governments 
 corresponding in form to that of Rome, but in all matters of 
 foreign policy, of peace and war, under the guidance of Rome, 
 and prohibited from all alliances within or without; 3. com- 
 munities whose members were citizens sine suffragio, included 
 
324 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 in the census, but neither entitled to vote or hold office ; 4. non- 
 Latin communities with varying rights depending on treaties 
 or Roman decrees. The third of these classes disappeared 
 about the time of Hannibal's wars, being either granted full 
 citizenship or entirely deprived of it. In after time the Ro- 
 man franchise was more and more sparingly conferred. With 
 the extension of Roman power throughout Italy there was 
 neither direct administration of local affairs by officers ap- 
 pointed at Rome, except prefects named by the praetor for 
 Roman colonies, nor representation of the different cities and 
 states in the central government at Rome. Neither did Rome 
 exercise the power of direct taxation in the conquered dis- 
 tricts, but the institutions of the various communities were 
 moulded into accord with those of Rome, and local govern- 
 ment was administered by local authority. Those persons and 
 communities enjoying full citizenship might exercise it as 
 members of the tribes and centuries at Rome, but not through 
 any system of representation. The struggle between the dif- 
 ferent orders, through which the plebs gained the power to 
 make laws, had no permanent effect tending to improve the 
 situation of the poor and middle classes. The differentiation 
 of rich from poor went on during the period of Rome's great 
 successes with constantly increasing speed. The poison of 
 slavery, fostered and perpetuated by successful wars through 
 which the slave market was constantly supplied, lay at the 
 foundation of the industrial and commercial system. The 
 burdens of war fell mainly on the small farmers. The privi- 
 leged classes extended their possessions and pastured their 
 herds and flocks on the public lands wrested from newly sub- 
 jugated people. The earnings of slaves bought more slaves 
 for the rich, while competition with slave labor and the ex- 
 tortions of usurers, who multiplied with great rapidity, placed 
 the small farmer or tradesman between the upper and nether 
 millstone. From the multitude of ruined farmers and traders 
 and their descendants, recruited by freedmen, there was de- 
 veloped that vast mass of poor and dependent citizens, for 
 whose benefit the senate deemed it wise to provide cheap bread 
 and amusements. The gains of the common people in the 
 
ROME 325 
 
 system of government were theoretical, while the aristocracy 
 seized, exercised and retained an increased measure of power. 
 With the extension of the field of operation of the armies 
 changes in the military system were inevitable. Whereas, in 
 the early days an army was made up of the citizens commanded 
 by a consul, going forth to fight some near enemy during a 
 brief campaign and then returning to the ordinary peaceful 
 avocations, distant campaigns required longer terms of ser- 
 vice and rendered it impracticable to recall and disband the 
 army within the year of service of the consul. It therefore 
 became the practice to extend the command of the consuls 
 engaged in distant wars beyond the year, and, in place of a 
 citizen soldiery equipped at their individual expense, it be- 
 came necessary to have paid legions. With the multiplication 
 of distant provinces, requiring the presence of armies to pro- 
 tect the frontier and repress insurrections, proconsuls were 
 appointed and continued in command for such periods as the 
 senate determined. For the administration of the law dis- 
 tricts were established, to each of which a prefect was sent, 
 who was a judicial officer at the head of the civil adminis- 
 tration of the law. Strictly local affairs were everywhere sub- 
 ject to municipal authority in the cities and Roman colonies, 
 and local customs were not disturbed, except for strong rea- 
 sons. Alliances were formed with native rulers, wherever 
 the interests of Rome could be advanced thereby, and the set- 
 tled foreign policy was expressed by the maxim, "divide and 
 rule." To this end republican Rome did not hesitate to ally 
 itself with kings and arbitrary rulers, wherever such alliances 
 appeared useful in its struggle with an aristocracy like that 
 of Carthage. With the extension of Roman power the pos- 
 sessions of the patricians and wealthy plebeians were extended, 
 and their estates spread, not only over newly acquired dis- 
 tricts in Italy, but into distant provinces. The money lenders 
 also followed in the wake of the armies, wherever the author- 
 ity of praetor and prefect could be depended on to enforce 
 the payment of usury. With the administration of govern- 
 ment in distant provinces inhabited by alien people, that high 
 sense of public duty and strictness of integrity for which the 
 
326 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 early Romans were distinguished disappeared, and officials 
 returned to Rome with vast wealth extorted from them. 
 These evils became so great, that in 149 B.C. a special court 
 was established for the trial of cases of official extortion in 
 the provinces, the jurisdiction of which was subsequently ex- 
 tended to cases of treason and bribery. The ancient system 
 of serving the state in all public stations without pay, though 
 still continued at home, thus had engrafted on it a most cor- 
 rupt and corrupting system of public service in the provinces. 
 
 Under the constitution above described, with the theoretical 
 power of lawmaking and election of officers in the hands of 
 the common people, but the actual direction of affairs in the 
 senate, the power of Rome was extended throughout Italy, 
 the Punic wars were waged and Carthage destroyed in 146 
 B.C. As incident to the struggle with Carthage Sicily and 
 Spain were reduced to Roman provinces, and on its final de- 
 struction its territory was also ruled directly from Rome. 
 Toward the east Rome did not at first seek to establish a 
 political dominion, but sought alliances and commercial rela- 
 tions. The encouragement given the Carthaginians under 
 Hannibal by the king of Macedon led to war, first with Philip 
 and afterward with his son Perseus, resulting in his total 
 defeat and capture by AemiHus Paulus 168 B.C., but Macedon 
 was not reduced to a Roman province till 146 B.C. The first 
 appearance of the Romans in Greece was as friends and allies 
 against Macedon, and on the first overthrow of the Macedon- 
 ian power the Greeks were liberated to their great delight, but 
 their internal dissensions soon led to the establishment of the 
 usual provincial system. 
 
 With the rapid extension of Roman power on the three 
 continents came a correspondingly rapid development of social 
 disorders. The Roman republic had been developed as a 
 municipal system for the protection and well being of a com- 
 paratively small state. Its first extensions of influence were 
 over other cities, similarly organized, to which substantial 
 equality was accorded; but with the rapid extension of empire 
 Rome as a central power dictated to the known world. It 
 was no longer an association of freemen, differing somewhat 
 
ROME 327 
 
 in rank, but closely allied in interest and sentiment, but a city 
 containing a vast mixed population, drawn from many na- 
 tions, most of whom were poor, ignorant and brutal, and a 
 numerous aristocracy of great wealth, despising all labor 
 and laborers. Avarice and greed of power became the rul- 
 ing passions of the nobility. The proconsuls and prefects, 
 who returned after the exercise of ill-defined and unrestrained 
 powers in the provinces, despised the rabble of the city, and 
 were impatient of the authority of the senate. Ill-gotten gains 
 were lavished, when occasion required, to corrupt the multi- 
 tude, and mercenary legions ceased to have the feelings or the 
 interests of the ancient citizen soldiery, but followed their 
 favorite leaders without regard to law or justice. Moral de- 
 basement of Roman society preceded the disorders which re- 
 sulted in the overthrow of the republic. The efforts of the 
 Gracchi to curb the power of the rich and afford relief to the 
 multitude, were not productive of permanent results, and cost 
 them their lives. Marius, though one of the common people 
 and six times chosen consul by them, was a soldier, and at 
 last he swept away the ancient system of organization of the 
 legions and substituted voluntary enlistment for compulsory 
 levy. The revolt of the Italians resulting in the social war, 
 which occurred 90 B.C., was the beginning of those disorders 
 which finally resulted in the empire. The legions under Sulla 
 and the grant of the Roman franchise to citizens of allied 
 communities domiciled in Italy overcame the resistance in the 
 provinces, but Sulla returned to Rome at the head of his 
 legions, and for the first time in the history of the city public 
 measures were dictated and carried by military power. The 
 substitution of violence for the ancient peaceful vote evi- 
 denced the decay of patriotism, and soon after Sulla's de- 
 parture for Asia at the head of his legions the new citizens, 
 who sought to exercise the franchises bestowed on them, were 
 attacked in the forum by an armed force, acting under orders 
 of the consul Octavius, and great numbers of them slain. In 
 place of the government of law there had come the sway of 
 military power. 
 
 From the ascendency of Sulla to that of Caesar the military 
 
328 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 leaders ruled in fact, using constitutional forms only as a 
 means of acquiring arbitrary powers. In the early period of 
 the development of military rule the leaders sought independ- 
 ent commands in the great provinces, by which they became in 
 fact dictators over vast territories, supported in the exercise 
 of unlimited powers by Roman troops. Having become ac- 
 customed to the exercise of unrestrained power abroad, they 
 did not brook constitutional restraints at home. Sulla gained 
 the command in Asia by the aid at Rome of the legions he 
 commanded in the Social war. After his departure Cinna and 
 Marius returned with their armed followers to wreak ven- 
 geance on their enemies and overawe the senate. Sulla on his 
 return from Asia crushed his adversaries and barbarously 
 murdered great numbers. The outbreak in 73 B.C. under 
 Spartacus and the conspiring of Catiline were but evidences 
 of the decay of constitutional government. The senate, 
 though led by so brilliant an orator as Cicero, had lost its 
 moral ascendency, and adopted the low expedient of calling 
 on one usurper to put down another. Pompey's power and 
 ambition developed in the command of Spain, followed by a 
 dictatorship over the Mediterranean Sea and its coasts for 
 the extirpation of piracy. The alliance of Caesar, Crassus and 
 Pompey resulted in the confirmation of Pompey's power in 
 Asia and a five years' lease of power to Caesar in Gaul and 
 lUyricum. In 55 B.C. Caesar's command was renewed for 
 another five years. Pompey received Spain and Africa and 
 Crassus, Syria. On his return in 49 and the flight of Pompey 
 Caesar assumed the whole power. The government had been 
 in a stage of transition for half a century, but it was not of 
 the kind that had gone on during the prior history of the 
 state. There was comparatively little agitation of theories of 
 government, of rights of classes, or of official powers. Mili- 
 tary leaders sought great commands, and having gained them 
 perpetuated and extended their power by the use of the legions 
 under them. It was a mere exercise of usurped authority, 
 backed by military force accustomed to obey the leaders' com- 
 mands. There was no independent and vigorous force in the 
 state, competent to formulate and maintain anything like a 
 
ROME 329 
 
 just public sentiment of controlling influence. The senate 
 divided into factions attached to the contending military lead- 
 ers. The great multitude, being without property, were in- 
 capable of steady, united effort to accomplish any reform 
 beneficial to themselves, and were in fact too brutal and igno- 
 rant to appreciate justice or virtue. The one conspicuous and 
 appalling fact, which accounts for all the political evils from 
 which Rome suffered, was the general and all pervading moral 
 debasement of the people. Among the wealthy classes gross 
 sensuality was the rule. The marriage bond, which in the 
 early days had been regarded as of peculiar sanctity, was 
 treated as a mere matter of convenience, and we read of all 
 sorts of divorces and exchanges of wives among the patri- 
 cians. The strength of the social system of Rome had cent- 
 ered around the family lares et penates, and the close tie 
 which held husband and wife, parent and child, together. 
 Laxity of the bond which holds man and wife together and 
 laxity of morals are inseparable. Without purity and in- 
 tegrity in the homes there is no basis for virtue in the state. 
 Slavery, in itself utterly immoral, is naturally productive of 
 allied evils. The great houses of Rome rested on the support 
 of slaves. Labor in all its forms was regarded as fit for 
 slaves only. To earn money by any useful employment was 
 to incur disgrace and social ostracism. In their amusements 
 the Romans exhibited in strong light their moral depravity. 
 The savage games and gladiatorial contests educated the multi- 
 tude to brutality. The great mass of paupers, who yet were 
 not slaves, were raised under a system which rendered it not 
 only disgraceful to work but of very little profit. To fight in 
 the arena or in the legions offered the best rewards. As it 
 had departed step by step from the path of virtue, the republic 
 had lost its vitality. Freedom cannot possibly exist without 
 justice. In looking for the cause of the overthrow of the 
 Roman republic various phases of the situation are given 
 special prominence by different ones, but the plain fact is 
 apparent, that moral degradation was all sufficient to produce 
 every disorder. 
 
 Caesar appears to have been not worse, but rather better, 
 
330 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 than the average of his contemporaries. After he crossed the 
 Rubicon he proceeded to restore order without resorting to the 
 butchery of Pompey's followers or confiscation of their prop- 
 erty. In this he showed his superiority to Sulla and Marius. 
 He did not ostensibly change the constitution, but he in fact 
 seized full sway and ruled nominally as a constitutional dic- 
 tator, but without limitation of time. The style of perpetual 
 dictator implied a suspension of all limitations on his power 
 during life. While he sought to restore prosperity and re- 
 lieve individual distress by allotments of lands to his old 
 soldiers, by the colonization of Carthage and Corinth, by 
 stimulating settlements and improvements in the decaying 
 towns and on the public lands of Italy, by draining the Fucine 
 Lake and the Pomptine Marshes and other like works, he yet 
 dissolved the popular political clubs and guilds, curtailed the 
 free distribution of corn, and abolished the popular element of 
 the judiciary. He assumed the title ''imperator" and ruled 
 through his ''legates," admitting no check or negative of his 
 commands by any authority. In form the old system con- 
 tinued and officers exercised their functions as of old. The 
 senate met, deliberated and resolved, the assembly passed laws 
 and elected magistrates. There were consuls, praetors, trib- 
 unes, aediles, and quaestors as of yore, but there was one su- 
 preme will, to which all opposition must yield, that of Caesar. 
 He transformed the senate by raising its numbers to nine 
 hundred and including in its list his old soldiers, sons of freed- 
 men, and even Gauls. He finally severed all authority over 
 the provinces from the Roman comitia and exercised his abso- 
 lute power through his appointees. At Rome, as in the prov- 
 inces, the officials chosen by the people were limited to the 
 exercise of municipal authority. He established in Italy a 
 uniform system of municipal government, which his succes- 
 sors extended throughout the empire. His brief rule from 
 49 to 44 B.C. was long enough to give definite form to the 
 changed system of Roman government, and to confer on him 
 the title of founder of the empire, although a period of civil 
 war and turmoil and the division of the empire among the 
 triumvirs intervened before the government became settled 
 under Augustus. 
 
ROME 331 
 
 Octavius after the overthrow of Anthony at Actium pro- 
 ceeded to so reconstruct the government as to retain all ulti- 
 mate authority in his own hands, while preserving the forms 
 of the republic. He did not lay claim to authority derived 
 from a source above or outside the people. On the contrary 
 he took his extraordinary powers by grant of the people and 
 under names and forms familiar to the republic. On the re- 
 storation of peace in 28 he resigned the dictatorial powers, 
 which he had held through the civil war, and handed over the 
 republic to the control of the senate and people. The senate, 
 assembly and magistrates resumed their functions. By decree 
 of the senate Octavius was granted the proconsulor authority 
 over all the provinces in which there was any military force, 
 the supreme command of all the land and naval forces of the 
 empire, with full power to recruit, pay and dismiss soldiers, 
 equip fleets, wage war and make treaties. This authority 
 was given at first for ten years. The power did not differ in 
 character from that which had long before been habitually 
 conferred on proconsuls in limited territories for shorter 
 periods. In 23 the governors of all the provinces were subor- 
 dinated to him, and he was exempted from the ancient law 
 requiring a proconsul to lay down his power on entering Rome, 
 and was allowed to bring into the city his prefects and prae- 
 torian guards and exercise his proconsular powers from the 
 city. This grant of power was formally renewed for subse- 
 quent periods of five and ten years. In Rome the proconsuls 
 hnperiiim carried preeminence and the right to take his seat 
 between the consuls, to be attended by lictors, wear the laurel 
 wreath, pahidamentum, general's cloak and sword of the 
 imperator. The senate conferred on him the title Augustus, 
 and he was popularly termed princeps. To complete the 
 measure of his power he was also made a tribune of the plehs 
 l)y decree of the senate and vote of the assembly. This gave 
 him the right of absolute veto on the acts of every administra- 
 tive officer, and to convoke the assembly and senate and pro- 
 pose to them new laws. The fundamental change which had 
 come over the views of the Roman people with reference to all 
 governmental matters was, that in place of looking either to 
 
332 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the aristocratic senate or the popular assembly as the source 
 of power, all eyes were turned to the proconsul. The senate 
 and assembly became mere instruments for the ratification of 
 his will. Under Sulla, Cinna, Marius and Caesar it had been 
 shown, that whomever the legions obeyed was master also of 
 the civil power and could command the votes of the popular 
 assembly as well as of the senate. 
 
 Augustus reorganized the army, enlisting soldiers for long 
 periods of service, twelve to sixteen years, with regular pay. 
 Of these he kept the praetorian guard, his household troops 
 and picked veterans, numbering in all 12,000 to 15,000, at 
 Rome. The whole army consisted of twenty-five legions, each 
 made up of 6,100 foot and 726 horse, recruited both from 
 citizens and subjects of the provinces. Aside from these aux- 
 iliaries from allied nations and dependencies were employed, 
 numbering about as many more. 
 
 Under Augustus the ancient system of municipal govern- 
 ment was preserved in form at Rome, but throughout all the 
 provinces his absolute imperium was under no check or limi- 
 tation. The actual administration of this absolute power was 
 carried on in accordance with a regular system, and, theoretic- 
 ally at least, justice was administered in accordance with laws. 
 The municipal system modelled after that of Rome, had in 
 republican times prevailed in all the Roman colonies, and 
 under the empire it was extended to the provincial cities gen- 
 erally, each city having officers corresponding to the consuls 
 and senate, who regulated local affairs and decided small cases. 
 Each senate sent two of its members to Rome to represent 
 its interests there. 
 
 For the purpose of levying the taxes Augustus caused a 
 great map of the empire to be made. The lands were classi- 
 fied and rates of taxation fixed according to the quality of the 
 soil and nature of the products. From some provinces a 
 share of the product was taken in kind, while from others 
 payment in money was required. The Romans were skilled in 
 the art of levying taxes, and not only land and capitation 
 taxes, but various forms of excise taxes and import duties 
 were levied, and the products of the mines as well as of the 
 
ROME 333 
 
 fields were made to swell the revenue. Under Augustus the 
 senate was allowed to retain control over the aerarium, or 
 treasury of the city, but the emperor's treasury, called the 
 fiscus, received the taxes from the provinces and was subject 
 to his sole authority. In a short time the aerarium fell under 
 the control of the emperors. The army and the treasury up- 
 held and perpetuated his power. To rule so many people and 
 so vast a territory and make his will effectual, general rules 
 of conduct must be announced and enforced through the prae- 
 tors and other officers. The vastness of the tyrant's power 
 compelled its exercise in accordance with fixed principles 
 rather than caprice, and this necessity promoted the develop- 
 ment of that great system of settled principles, based on the 
 consensus of opinion of successive generations, which fur- 
 nishes the foundation of the modern jurisprudence of most 
 European and American states. 
 
 During the republic, except when a dictator held absolute 
 power in an emergency and for a brief period, the functions 
 and powers of all public officials were limited by law, and 
 different offices were designed to afford a check on each other. 
 The fundamental change effected by the Caesars superimposed 
 a military head, who was not accountable to the people or the 
 senate. Augustus did not attempt to break up the ancient 
 civil system, but rather to reconstruct and strengthen it. In- 
 stead of abolishing minor offices he increased the number. 
 The senate was allowed to continue to deliberate and exercise 
 its former functions in all matters which did not interfere 
 with his supremacy or policy. The evils of this system had 
 been manifested under the temporary grants of dictatorial 
 powers during the civil wars, and became more apparent under 
 succeeding rulers. Unrestrained power in the hands of bad 
 men is always abused. Not only does the tyrant gratify his 
 own personal malice and ruin or destroy his particular ene- 
 mies, but those whom he uses as his instruments for such 
 purposes are also, as a rule, allowed to treat their enemies in 
 a similar manner. By far the greater number of victims 
 under the worst of the emperors owed their misfortunes to 
 the malice of favorites and subordinates, who used the author- 
 ity of the emperor to further individual ends. 
 
334 EVOLUTION OF GOVERiNMEXTS AND LAWS 
 
 The idea of government by law was never wholly aban- 
 doned under even the worst emperors. While he was subject 
 to no supervision or control, he still in theory was subject to 
 the laws. This adherence to laws rendered order, tranquillity 
 and prosperity possible under the best of the emperors, and 
 greatly mitigated the evils under the worst of them. The 
 habit of recurrence to a recognized standard of right or of 
 conduct tended to steadily diminish the number of personal 
 feuds, and to encourage commerce and agriculture. The 
 element of arbitrary power was looked upon as a great bless- 
 ing when wielded by virtuous rulers, but the poison of the 
 system became manifest under every weak or vicious one. 
 Against a tyrant there was no protection, and the Roman 
 people no longer strove to improve their governmental sys- 
 tem, or to study great social questions. 
 
 In the administration of the law the judges were expected 
 to decide causes in accordance with settled rules. Wherever 
 a legislative enactment covered the case they were of course 
 bound by it, but, in the absence of such a positive law, a sys- 
 tem of rules was evolved by those who made a special study 
 of the law, and who were looked to as authority on doubtful 
 points. The judges who actually administered the law were 
 not regarded as authoritative expositors of it. In cases of 
 doubt they applied to the learned juris consults, licensed by the 
 emperor to give written expositions of the law, for an opin- 
 ion. This was given in writing and was generally regarded 
 as binding, except that where two juri's consults gave opposing 
 opinions the judge was free to decide according to his own 
 views. The emperor exercised judicial functions in cases 
 brought before him either originally or by appeal or removal 
 from an inferior court. Imperial decrees and rescripts in cases 
 decided by him came to have the effect of laws. The emperor 
 in theory merely declared the preexisting law, but when the 
 question was new the declaration had the effect of the enact- 
 ment of a law. These were formulated under the advice and 
 with the assistance of the most learned lawyers, who proceeded 
 step by step, to build up a great system of jurisprudence. 
 Though the governmental system became rigid, unprogressive 
 
ROME 335 
 
 and therefore moribund, with the final estabHshment of the 
 empire the development of the system of laws went on in the 
 most rational manner. To the Romans the credit is due of 
 systematically developing rules of conduct and governing 
 property rights from an intelligent consideration of the needs 
 of society. They did not attempt at one stroke to cover the 
 whole field by a code of laws which should not admit of 
 change or modification, but proceeded to consider the ques- 
 tions as they arose from time to time, and formulated their 
 principles from what accorded with their conceptions of right. 
 Under the republic it had been deemed unjust or impracticable 
 to measure the rights of strangers trading with citizens or 
 with each other, by the Roman jiis chile, and so what was 
 styled jus gentium or private international law was evolved 
 by the praetors. About 242 B.C. a second praetor was ap- 
 pointed, called praetor peregrimis, whose principal duty was 
 to hear causes to which foreigners were parties, and in the 
 exercise of his jurisdiction he applied the jus gentium in those 
 cases where Roman civil law was not within the contemplation 
 of the parties and its application would be productive of mani- 
 fest hardship. The Roman system under the republic ex- 
 hibited a marked tendency to adapt itself to the public needs 
 and to change with changing conditions, and herein lies the 
 secret of its remarkable development. Under the republic 
 the praetors were accustomed, on taking office, to publish on 
 their albums (white boards in the forum), edicts making 
 known the relief they would afford in certain classes of cases. 
 These edicts might be continued by the successor or not, but 
 many of them were repeatedly proclaimed and came to have 
 practically the force of settled law. With the development of 
 commerce the customs of merchants, based on the necessities 
 of the conditions under which their business was transacted, 
 were recognized by the praetors, and these customs in course 
 of time ripened into laws. It was this facility for dealing 
 with new conditions and adapting means to ends that rendered 
 continued Roman supremacy possible. The rulers at Rome 
 had to deal with people varying in civilization and culture 
 from the rude tribes on all the frontiers of the three continents 
 
336 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 to the highly poHshed Greeks. For the first time in the 
 world's history there were united under a single authority the 
 dwellers in the earliest seats of civilization in Egypt and 
 western Asia, the Phoenician colonies of Africa, Sicily and 
 Spain, Greece and all the Greek islands and colonies, the rude 
 tribes of Spain, Gaul, Germany, Britain and Thrace, as well 
 as the varied population of Italy. Rome from its earliest 
 conquests had been accustomed to accord local self-govern- 
 ment to subjugated communities, and throughout the develop- 
 ment of all its vast empire and after the fall of the republic 
 it continued to leave the regulation of purely local affairs to 
 the people interested, but the central authority had to deal with 
 the relations of all these varied peoples with Rome and the 
 Romans, and with such other portions of the empire as they 
 were permitted to have dealings with. The jus civile was the 
 law adapted to the conditions, customs and prejudices of 
 Romans, but not to those of strange people. 
 
 In the development of the jus gentium the Romans sought 
 rules which could be safely applied under all conditions and 
 between all people. It would be inaccurate to say that they 
 strove to do ideal justice in each case, or that they searched 
 for rules founded solely on moral principles, but a search 
 after general rules which can safely be applied under all cir- 
 cumstances necessarily leads in the direction of truth, justice 
 and morality. The jus gentium of the Roman jurists, though 
 developed in a manner somewhat similar to the common law 
 of England, differed from it in this, that the jus gentium was 
 based on the needs of the newly acquired foreign subjects, 
 while the common law is based on domestic customs and 
 needs. Both however have for their foundation the presumed 
 existence of principles of recognized force, though not pro- 
 mulgated by legislative authority. While the intellectual ac- 
 tivity of the Greeks exhibited more brilliant results along 
 most lines than that of the Romans, in the science of law 
 the Romans are clearly entitled to the first rank. While the 
 system of government established by Caesar early manifested 
 its imperfections and its utter lack of any mainspring urging 
 it in the direction of improvement, the juris consults, en- 
 
ROME 2>Z7 
 
 couraged and efficiently backed in their efforts by the best of 
 the emperors, by degrees evolved a system of laws commend- 
 ing itself to such sense of justice as has generally obtained 
 among the great mass of mankind. Roman jurists early 
 found that a complex civilization presents complex problems, 
 and that the law must deal intelligently with these and with 
 all of them, however numerous. They proceeded laboriously 
 to formulate rules of general application, by which every con- 
 troversy might be determined. In their search after these 
 principles they were inevitably led to a consideration of jiis 
 naturale, which embodied the idea of natural rights existing 
 without legislative sanction. Augustus adhered to the an- 
 cient system of legislation in the principal reforms he pro- 
 posed, and caused his law to be adopted by vote of the comitia 
 of the tribes. He made a most commendable, though not 
 entirely successful, effort to reform public morals by encour- 
 aging marriage and the rearing of children. One of the pro- 
 visions of his law excluded unmarried persons within certain 
 ages from taking property by will, and limited childless per- 
 sons to one-half the amount given. Another class of legis- 
 lation, deemed of great importance, regulated the manumission 
 of slaves and determined the status of freedmen according to 
 circumstances prescribed in the law, as citizens, as capable of 
 becoming such or, owing to bad character, forbidden to reside 
 within one hundred miles of Rome or ever to become a 
 citizen. A third class of enactments regulated procedure in 
 private causes. 
 
 From the time of Tiberius the comitia was no longer con- 
 sulted, and under succeeding emperors imperial rescripts and 
 decrees gradually superseded legislation by assembly and sen- 
 ate. Rome witnessed the growth of the law of contracts from 
 primitive conditions in the early days of barter of chattels 
 and tribal and patriarchal tenure of lands through successive 
 stages to that freedom of contract so essential to commercial 
 activity. In the early stages the formalities required in the 
 transfer of property in order to furnish a basis for the action 
 of the courts were incompatible with anything like commercial 
 activity, but step by step the law of contracts developed, till 
 
338 EVOLUTIOX OF GOVERjNMEXTS AND LAWS 
 
 the intent of the parties was given effect by the courts with 
 httle needless formaHty. The law of inheritance was through 
 all ages a leading subject of jurisprudence, and here, as in 
 the law of contracts, there was a steady tendency to greater 
 freedom in the disposition of property according to the will 
 of the owner. Contemporaneous with the vast increase of 
 the army new rights were accorded to soldiers in the dispo- 
 sition of their estates by testament. As to property acquired 
 by military services the soldier son was allowed full power of 
 testementary disposition, freed from the patria potestas of the 
 head of the family. With this change came also a recognition 
 of the right of owners generally to dispose of property by 
 will and the growth of trusts created by will. The great heads 
 of legislation and judicial cognizance were domestic relations 
 i.e., family and slaves, inheritances, contracts, land tenure. 
 
 For the protection of invaded rights there was an effort 
 under the empire to improve remedies and adapt means to 
 ends without any radical change of the system. The ordinary 
 suit was instituted by application to the praetor. Under the 
 old system the parties themselves formulated the issues to be 
 tried in accordance with statutory or traditional forms, and 
 the issue so made was sent to the judex for trial. This was 
 changed so that the issue was framed by the praetor. The 
 plaintiff usually stated the case and indicated on the album 
 the remedy he thought suitable, and the defendant entered 
 his plea indicating matter of defense in law, and reserving his 
 right to traverse the facts. Thereupon the praetor considered 
 the legal exceptions to the case stated by the plaintiff, and 
 made up a written and signed appointment to a judge, in- 
 structing him what to try and authorizing him to condemn or 
 acquit the defendant. The form in which the issues were 
 framed in an ordinary action to recover a debt was exceed- 
 ingly simple Hke this ''Caius be judge. Should it appear that 
 M. A. ought to pay ten thousand sesterces to J. C. in that 
 sun condemn M. A. to J. C. ; should it not so appear acquit 
 him" ! Modifications of this form allowed the recovery of 
 the value of chattels or an equitable accounting of profits or 
 the like. 
 
ROME 339 
 
 One form for the trial of a suit for land was, that the 
 plaintiff required the defendant to give him a stipulation to 
 pay a nominal sum in case the land should be found to belong- 
 to the plaintiff and to give surety for its transfer in that event. 
 The question sent to the judge to be tried was whether the 
 sum should be paid. If the plaintiff recovered and the de- 
 fendant did not deliver the property, recourse was had on the 
 sureties. Besides the set forms adapted to certain classes of 
 actions the praetors formulated a great number, suited to 
 special cases, generally styled actiones in factum. They also 
 by interdict gave relief similar to that granted by injunction 
 under our practice. The development of remedies was very 
 similar to that in England. In the early times a few set 
 forms of action afforded all the relief allowed; later these by 
 fiction were allowed to cover cases not within the letter, and 
 then new forms of procedure were devised to meet new con- 
 ditions. Causes presenting novel questions and of especial 
 difficulty were retained for trial and disposition by the praetor 
 or taken cognizance of by a consul. The judices to whom the 
 praetors referred causes were not officials, but citizens se- 
 lected to hear and determine the particular cases. In the time 
 of Diocletian the system of referring causes to judices fell 
 into disfavor and was soon discontinued altogether; gover- 
 nors, prefects and praeters being required to hear the cause 
 to the end, and the old procedure by which the plaintiff him- 
 self brought the defendant into court was abandoned. 
 
 The government of Rome, though in its essence a despot- 
 ism, did not discard all the forms of a republic till the time of 
 Diocletian. Though for centuries the obsequious senate had 
 ratified the edicts of the emperors and given a formal sanc- 
 tion to his will, Diocletion ignored it altogether. He associ- 
 ated with himself the harsh and vigorous soldier Maximian, 
 as joint ruler with the style Augustus, and later two other 
 associates, as inferiors under the style Caesares ; all subor- 
 dinate to Diocletian as senior Augustus. He threw off all 
 pretense of constitutional government and openly assumed 
 autocratic powers, and to the title ''imperator'' added that of 
 "dorninus;' and required those approaching him to make those 
 
340 EVOLUTION OF GOVERNMiENTS AND LAWS 
 
 servile prostrations which were customary in the courts of the 
 east. He infused vigor into the administration of the local 
 government, but it was everywhere despotic vigor, emanating 
 from the central authority. The government ceased to be ad- 
 ministered from Rome as the seat of power ; Nicomedia in the 
 east and Milan in the west became the favorite residences 
 respectively of Diocletian and Maximian. In his reign the 
 government reached its climax of absolute power and rigidity, 
 though the scheme of a quadruple division of power did not 
 endure. While administrative changes occurred from time 
 to time thereafter, the government remained despotic, unpro- 
 gressive and moribund. The Roman republic was dead. The 
 Roman empire ceased to be ruled either from Rome as a capi- 
 tal or by Romans, for Diocletian was the son of slave par- 
 ents, and his mother was a Dalmatian. At the head of the 
 civil administration were four prefects, under whom were the 
 vicarii over the twelve dioceses, and governors of the ii6 
 provinces with their hosts of minor officials, all under strict 
 subordination and accountability to the central authority. 
 
 The reign of Constantine, beginning in 323, witnessed the 
 establishment of the capitol of the eastern empire at Constan- 
 tinople and the adoption of the Christian religion as the re- 
 ligion of the empire, but the theory of government remained 
 unchanged. For the beneficial eflfects of Christianity we have 
 to look elsewhere than to the governmental machinery. 
 Though writings embodying the principles of the law multi- 
 plied, not only in the form of enactments by the comitia and 
 senate and later in rescripts and edicts of the praetors and 
 emperors, but also in extended commentaries by juris con- 
 sults, it was not till the reign of Diocletian that the first 
 efforts at codification were made. The Gregorian Code was 
 a collection of imperial rescripts made near the end of the 
 third century, to which Hermogenianus added a supplement 
 about 365. These codes received the sanction of Theodosius 
 and Valentinian. Under Theodosius a compilation was made 
 and published A.D. 438 in sixteen books, covering the whole 
 field of the law. Other less noted compilations among which 
 may be mentioned one by order of Theodoric king of the 
 
ROME 341 
 
 Ostrogoths, called the Edictum Theodoric, and another by 
 order of Alaric II king of the Visigoths, styled Lex Romana 
 Visigothorum. 
 
 The work however which stands as the product of all legal 
 development under the empire is that accomplished by Trbon- 
 ian and his associates. As we have seen, during the years of 
 development the law gained written expression from time to 
 time in edicts, rescripts and opinions of the juris consults. 
 These in the time of Justinian had become so numerous as 
 to fill nearly two thousand volumes. Justinian was not merely 
 a compiler, but himself made various reforms in the body of 
 the law. The first compilation made under his order was 
 called the code, including the statute law and rescripts of the 
 Gregorian and Hermogenian codes. This was followed by 
 his fifty decisions, the Institutes, the Digest of writings of the 
 jurists, a revised code and a series of Novels. Taken together 
 they purport to cover the whole field of the law, civil, criminal, 
 public, private, secular and ecclesiastical. The most that can 
 be attempted here in reviewing this great work is a very gen- 
 eral outline of its scope and leading provisions. This is ren- 
 dered most difficult by the want of systematic and orderly 
 arrangement, which alone saves modern publications from 
 chaotic worthlessness. 
 
 Of the compilations of Justinian the Institutes were de- 
 signed as a textbook for the schools, but the Digest and 
 second or revised code were declared of equal authority. A 
 condensed summary of the Institutes will be found in the Ap- 
 pendix. It is noticeable that the compiler and final authorita- 
 tive promulgator of this vast product of Roman jurists, should 
 have been a barbarian, born in Illyricum, ruling in Constanti- 
 nople after the final extinction of the western empire and the 
 overthrow of Rome as a center of political power. The vast 
 accumulation of legal lore filling so many volumes was re- 
 duced to reasonable limits, freed from many uncertainties, 
 improved in many particulars and promulgated ' as of con- 
 trolling authority in all courts in the empire. It is even more 
 remarkable that the perfection of this great body of law should 
 have been effected after the disintegration of the empire was 
 
342 EVOLUTION OF GOVERNMENTS A'ND LAWS 
 
 well advanced, and at a time when letters were neglected and 
 the authority of courts was being broken by the inroads of 
 the barbarians and the disruption of the Roman system 
 throughout the empire. Having reached its culmination the 
 Roman law ceased to develop or have uniform operation, but 
 gave way to the customs and laws of the barbarians wherever 
 they supplanted Roman civilization. It was still resorted to 
 in those parts of the empire which escaped the inroads of the 
 barbarians, and as learning revived regained its force with 
 modifications resulting from changed customs and conditions. 
 Justinian, like many another lawgiver, aimed at completeness 
 and finality in his work, and forbade the use of any other 
 books or authorities, or any comments or interpretations of 
 his works. He like others was oblivious to the truth that an 
 absolutely fixed and rigid system of government or of laws is 
 impossible. Anything like a clear comprehension of a system 
 of laws necessitates an understanding of the material and 
 social conditions to which it is applied. If we had no extrin- 
 sic evidence, the laws themselves exhibit the importance of the 
 Roman theory of the family and of the institution of slavery. 
 From the earliest days of Rome slavery had been a recognized 
 institution, and it held its place until the empire broke into 
 fragments. In the early days the number of slaves was rela- 
 tively inconsiderable, but as new territories were added and 
 the rich citizens enlarged their estates, they increased the 
 numbers of their slaves, till in the time of the Caesars the 
 nobles owned them by hundreds and even by thousands. With 
 this great increase in slave holding came a corresponding de- 
 crease of the prosperity of the poorer class of citizens, who 
 throughout the agricultural districts gradually ceased to be 
 independent landowners and became tenants of the wealthy 
 proprietors. In course of time this tenancy became on harder 
 and harder terms, till the coloni, as they were termed, became 
 virtually serfs attached to the soil, bound to cultivate the 
 land on terms affording but a bare subsistence. Agricultural 
 slaves were to a great extent assigned to the cultivation of 
 particular tracts of land, which they were permitted to occupy 
 with their families, and thus the actual conditions under which 
 
ROME 343 
 
 the coloni and the slaves Hved were often very similar. In 
 the days of greater activity slaves were employed by their 
 masters, not only on all kinds of works, but in all trades and 
 callings, and opportunities for the acquisition of property and 
 of freedom were afforded to some. The proud Roman patri- 
 cian despised all useful labor and entrusted every employment 
 to his slaves. Under the republic their numbers were sufficient 
 to make servile revolts serious, and the insurrection under the 
 leadership of Spartacus was only subdued after a desperate 
 and bloody war. The emperors aimed at the establishment 
 of social order and the protection of property rights. The 
 moral claims of the slave to liberty and the pursuit of happi- 
 ness were wholly obscured by the master's right to property. 
 The great province of law and government was first to firmly 
 establish the power of the emperor and those acting under 
 him, and next to maintain the rights of property, that is the 
 dominion of the master over his slaves and his lands. The 
 ancient Roman idea of a single head of the family with full 
 sway over all his children under the power and their families, 
 accorded well with the spirit of a slave holding community. 
 We have seen how largely slavery entered into the legal sys- 
 tem of Justinian, and how fully it was recognized, though de- 
 clared to be contrary to natural justice. With the reign of 
 Justinian the empire in the west witnessed its last vigorous 
 assertion of supremacy in Italy, though it nominally main- 
 tained a semblance of authority in central Italy till 755. The 
 perfected despotism had become crystalized under Diocle- 
 tian, leaving no chance for development or betterment from 
 the wisdom of the multitude. The lawyers and lawmakers 
 continued to change, amend and improve the laws till the time 
 of Justinian, when they were compiled by his direction, and 
 though greatly improved and rendered far easier of access 
 than when scattered through so many volumes, they rapidly 
 passed out of view and became unsuited to the changed con- 
 ditions. The social decay resulting from an organization of 
 society under which the great multitude were slaves, without 
 education, opportunity for observation except of their im- 
 mediate surroundings, or hope of better conditions, with an 
 
 k 
 
344 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 indolent debauched nobility supported as drones, invited the 
 frequent inroads of the more free and vigorous races of the 
 north. The various Germanic tribes, the Goths, Vandals, 
 Lombards, Huns and Franks in wave after v^ave swept down 
 on Gaul, Spain, Africa and Italy, until the Roman system 
 gave way, and a new composite of northern manners and Ro- 
 man customs ushered in the so-called dark ages, when learn- 
 ing was for the priest alone, and war was the business of 
 every freeman. With the growth of the feudal system, with 
 its lord paramount at the top and its serf bound to the soil 
 at the bottom, the slavery of the Romans disappeared. It 
 may be interesting for scholars to trace the stages by which 
 the slaves and coloni of the Romans and the humbler follow- 
 ers of the Prankish leaders were transformed into the lowest 
 round of the feudal ladder, but the transformation was not 
 the result of conscious law-making. The decay always in- 
 cident to despotism, idleness and corruption in the palace, a 
 multitude of officials, ever bent on extorting more and more 
 from every producer of wealth, weakness and inefficiency in 
 those who lived in idleness on the fruits of the labors of oth- 
 ers, at last culminated in conditions but little removed from 
 anarchy. The various leaders attracted followers according 
 to their abilities, to whom they parcelled out the lands on a 
 strictly military tenure, the lord pledged to protect the vassal 
 in his possession and the vassal bound to fight in all the lord's 
 wars. The slave, the colonus and the indigent became the 
 serf, ceorl and villein of the feudal chief. The eastern em- 
 pire lingered on as an uninteresting despotism till the fall of 
 Constantinople in 1453. At Rome the spiritual power of the 
 popes gained an ascendency over Europe, which made the 
 eternal city once more the seat of power. 
 
 From the fragments of the western empire, through num- 
 berless vicissitudes have developed the modern European 
 states. Until within modern times these, with exceptions 
 hereafter noticed, were mostly governed by rulers claiming 
 power as absolute as that exercised by the later Roman em- 
 perors. The rules of feudal tenure took the place of the land 
 laws of the Romans and gave to title to lands a prominence in 
 
ROME 345 
 
 the system of laws which it never had under the Romans. 
 With the latter the slave was a more prominent object than 
 the land he tilled. Under the feudal system land tenure was 
 the basis of the relations of all orders of society, and the land 
 and its produce, after the decay of the industrial arts, became 
 almost the sole wealth of the people. The rank of the lord 
 paramount depended on the extent of his holdings and the 
 number of retainers who did him homage. 
 
 Though so large a part of the Roman law became obsolete 
 by this change, it still contained the only compilation of rules 
 for the determination of questions arising from the multi- 
 farious dealings of men, from their contracts, their acts and 
 neglects, and with the revival of learning and of commerce, 
 the great work of Justinian, having slept for hundreds of 
 years, became the fountain of legal lore to which the students 
 of the law throughout all Europe turned for light and author- 
 ity on doubtful points. The reasoning of the ancient writers, 
 preserved in the Digest, still throws as clear light on many 
 questions as can be found anywhere, and carries with it the 
 authority of jus naturale. 
 
 Five centuries of struggle between classes for ascendency, 
 and of a public sentiment that demanded from the citizen a 
 sacrifice of private interest and of life when needed for the 
 republic, witnessed the rise of the Roman state, the extension 
 of a system of self-government and of laws over western 
 Europe and all the countries bordering on the Mediterranean 
 Sea. It witnessed a high development of agriculture, the 
 growth of manufacturing, mining, arts and conimerce, where- 
 ever Rome's power was recognized, and marked advancement 
 in learning. Though Rome waged almost incessant war in 
 some quarters, the area of peace extended with her conquests, 
 and an ever increasing proportion of the people were enabled 
 to pursue peaceful avocations in security. Under these condi- 
 tions population multiplied and wealth and comfort, though 
 most unequally distributed, were general throughout the state. 
 During these five centuries public office was sought and public 
 duties were performed for honor, not for profit. The rank 
 and distinction resulting from high office of state were 
 
346 EVOLUTION OF GOVERiNMENTS AND LAWS 
 
 deemed so great a reward that the brief terms of yearly 
 power were eagerly sought by the most capable citizens. 
 
 The vast military organization and the struggle for its 
 leadership developed the empire. Five centuries of rulership 
 from a single head through an ever increasing multitude of 
 highly paid officials, of gradual elimination of all self-govern- 
 ment and of substitution therefor of rigid laws, enforced 
 often with extreme severity and cruelty, witnessed the decay 
 of public virtue, the decline of population, wealth, learning 
 and all those conditions which tend to make Hfe enjoyable. 
 Owners of vast estates with their multitudes of slaves af- 
 forded no material from which to build an efficient, spirited 
 army. The free and vigorous Germanic tribes swept over 
 Gaul, Spain, Africa and finally Italy and Rome itself. The 
 magnificent structure of a firm and settled government with 
 its code of well developed laws governing so vast a territory 
 and such a multitude of people, capable as one might think 
 of conferring immeasurable good on innumerable people, in 
 fact resulted in desolation and anarchy. Why? Because it 
 was immoral and unprogressive. It bred vice and cruelty in 
 the palace and all who held authority under it, and stifled the 
 political virtues of the multitude. It divided the people into 
 masters and slaves. Though the eastern empire lingered on 
 till Mahomet II took Constantinople, and killed the last of 
 his line, the emperor Constantine Poleologus, it presents no 
 other features of government or laws worthy of especial study. 
 It was but another oriental despotism, with its record of ever 
 recurring cruelty, treachery, wars, murders, and occasional 
 exhibitions of virtue in the palace, soon followed by the same 
 old story of debauchery, vice and imbecility; overthrown at 
 last by a new dynasty to again follow the same dreary round. 
 
 Though the Western Empire passed away long before the 
 Eastern, the influence of Rome as a law-making and law-en- 
 forcing power was perpetuated through the Church, and still 
 continues. The Canon law was more than a collection of 
 moral precepts advanced as binding on the conscience. It 
 covered a field claimed by the Church as under its government, 
 and came to be accepted in more or less of its rules by the 
 
ROME 347 
 
 secular power of all the nations professing the Christian re- 
 ligion. It was given form by synods and councils of the clergy 
 and the decretals of the Pope. These were put forward as 
 carrying a religious sanction, binding on all mankind, and 
 were enforced by the tribunals of the church in accordance 
 with its practice. From the Canon law are taken many of the 
 rules now observed not only on the continent of Europe, but 
 in Great Britain, its colonies and the United States, in mat- 
 ters relating to the domestic relations. The Church took 
 charge of the baptism of infants, the marriage of adults and 
 the burial of the dead. In the performance of these rites 
 there was no distinction of rank. Prince and pauper alike 
 were children of the Church. With the acceptance of the 
 Christian religion the heathen prince bowed to the spiritual 
 power of the Pope, and received baptism at the hands of a 
 priest. It was impossible to be a Catholic without acknowl- 
 edging some part of the Canon Law, and thus the most power- 
 ful monarchs found it impossible to wholly ignore the 
 temporal sway of the Pope within their dominions. The 
 principal heads of the jurisdiction of the ecclesiastical courts 
 were : 
 
 1. Marriage and divorce. 
 
 2. Legitimacy of children. 
 
 3. Wills and the administration of estates of deceased 
 persons. 
 
 4. Causes relating to church property and revenues. 
 
 5. Those affecting the persons of the clergy. 
 
 The first two were earliest asserted, most generally admit- 
 ted and continued to be longest exercised. The fourth and 
 fifth were most difficult to establish and maintain. Many of 
 the principles followed by the ecclesiastical tribunals as sub- 
 stantive law are still retained in countries where the jurisdic- 
 tion of church tribunals is confined to the discipline of its 
 members in purely religious matters. 
 
348 EVOLUTION OF GOVERlNM-ENTS AND LAWS 
 
 Authorities 
 
 Momsen: History of Rome. 
 
 Gibbon : Decline and Fall of the Roman Empire. 
 
 Merivale: Romans under the Empire. 
 
 Livy. 
 
 Tacitus. 
 
 Caesar. 
 
 Sallust. 
 
 Plutarch's Lives. 
 
 Encylcopaedia Britannica. 
 
CHAPTER XV 
 
 Mediaeval Europe 
 
 The empire of the Romans in Europe was limited on the 
 north and east by the Danube and the Rhine after the aban- 
 donment of Dacia in 256, and included Britain and the low- 
 lands of Scotland in the north and the Chersonese on the 
 Black Sea. Without these boundaries lay the vast terra in- 
 cognita of Germany, Sarmatia and the northern peninsula. 
 Of the early history of this unknown country we know only 
 what is told by Greek and Roman historians in connection 
 with wars and movements of people, where Greeks and Ro- 
 mans came in contact with Germans, Getae, Scyths and other 
 people of the north and east. 
 
 After their conquest Spain and Gaul became thoroughly 
 Romanized, and the country south of the Danube with its 
 predominant Greek elements submitted to Roman rulership 
 and laws. Though the empire was many times shaken by 
 wars over the succession to the imperial throne, and though 
 in the east Persia offered battle from time to time, the period 
 from the reign of x\ugustus to the overthrow of the western 
 empire in the fifth century was one of comparative peace and 
 security, yet not of progress. Agriculture and the useful arts, 
 instead of advancing, fell into decay. Learning waned and 
 the ability to read and write, which under the republic had 
 become common, was rare. The great works of Justinian 
 in the next century, reducing the laws to form and system, 
 never became generally known to the people of his exhausted 
 and crumbling empire. 
 
 Imperial rule produced neither moral nor material develop- 
 ment. Roman sentiment never condemned, but rather de- 
 lighted in bloody spectacles and exhibitions of cruelty and 
 barbarity. Slavery lay at the foundation of property rights. 
 The ig^norant multitude applauded the lavish expenditures and 
 
 349 
 
350 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 barbaric display of the rich. Neither the government nor the 
 property system rested on any moral basis. With the destruc- 
 tion of the middle order the integrity of the domestic system 
 was broken, and that only sure repository of virtue and purity, 
 the family, was subjected to the debasing influence of frequent 
 divorces and remarriages at the dictation of interest or 
 caprice. 
 
 With the republic also passed away that devotion to the 
 public welfare, which had been the conspicuous virtue of 
 Romans throughout the long and desperate struggles that 
 gave Rome mastery of the known world. This was the Ro- 
 man approximation to a conception of the universal moral 
 principle of mutual help. In its place came oriental sordid- 
 ness. Deprived of all participation in affairs of state, unless 
 as the mere instruments of the imperial will, the ambition of 
 the citizen was to gain wealth and through wealth enjoyment. 
 The sure fruits of successful effort in this direction are 
 cruelty and sensuality, which in turn bring disease and destruc- 
 tion. Out of the darkness came the Germanic tribes, whose 
 history no records preserve. With manners and customs 
 bearing more resemblance to those of the Romans of the 
 early days than prevailed in the empire, they attacked the 
 enervated Romans. In the early years of imperial rule the 
 vast resources of the empire were such as to render victory 
 over the comparatively insignificant tribes sure, if not easy. 
 In the reign of Marcus Aurelius an irruption of the Marco- 
 manni and allied tribes swept across the upper Danube over 
 Pannonia, Noricum and Rhaetia to the Alps. They were 
 driven back after fourteen years of war. In 236 the thereto- 
 fore unknown tribes of the Alemanni crossed the Rhine, and 
 the Goths appeared on the Danube. During the civil wars 
 from the reign of Philip to Claudius, 244 to 249, the bar- 
 barians improved their opportunities, and the Alemanni and 
 Franks poured into Gaul and Spain and even Africa. In 
 247 the Goths crossed the Danube and overran Moesia, Thrace 
 and Macedonia and in 251 defeated and killed the emperor 
 Decius. In the reign of Valerian 253-260 their fleets ap- 
 peared on the Black Sea and ravaged the maritime towns of 
 
MEDIAEVAL EUROPE 35i 
 
 Asia Minor. In the reign of Gallienus, 260 to 268, a fleet of 
 five hundred sails appeared on the coast of Greece and sacked 
 Athens, Corinth, Argos and Sparta. In 269 under the emp- 
 eror Claudius the Romans defeated and drove them back 
 across the Danube. Five years later a raid of Franks and 
 Alemanni was repulsed on the Rhine. As a result of these 
 conflicts the Romans were forced to recede and abandon Dacia 
 and all possessions beyond the Rhine and Danube to the ad- 
 vancing barbarians. Under the vigorous and despotic reign 
 of Diocletian the integrity of the empire was preserved and 
 the authority of the government vigorously maintained, but 
 there was no improvement in the moral tone of either people 
 or government. Selfishness and want of social virtue called 
 for a better corrective than a more vigorous assertion of au- 
 thority and an increased burden of taxation. The removal of 
 the capital to the Bosphorus was soon followed by the division 
 into the eastern and western empires, and by the decay of im- 
 perial authority throughout the west. 
 
 In 376 the Huns emerged from the unknown hives of Asia 
 and pressed against the Goths, who sought the protection of 
 the emperor. They were allowed to cross the Danube and 
 settle in Moesia, but soon rose in arms against their protectors 
 and in 378 defeated and killed Valens, overran Illyricum, and 
 advanced to the gates of Constantinople. Theodosius made 
 peace with them and took many into the army. While the 
 boundaries of the empire were nominally maintained through- 
 out the fourth century, there was a growing pressure from 
 the northern tribes. As a result of their contact with the 
 Romans, Goths, Franks and other nations acquired some 
 knowledge of military science, and learned to supplement the 
 hardy valor of their warriors with some measure of discipline 
 and mutual support. On the other hand, civil wars, the de- 
 pendence on mercenary troops, the utter disappearance of 
 everything like unselfish devotion to the public welfare, the 
 grinding burden of taxation levied to pay mercenaries, many 
 of whom were barbarians, and to support the vile profligacy 
 of the palace and the ever growing multitude of officeholders, 
 the slavery or extreme poverty of all who labored, and the 
 
352 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 want of courage and manhood in the favored few, who dissi- 
 pated in wasteful luxury the best of all the toilers produced, 
 left the empire enervated and spiritless. Barbarians who had 
 fought in the armies of the emperors became qualified to 
 lead armies, and Alaric, who had been favored by Theodosius, 
 led the Goths from their settlements south of the Danube, 
 where many of them had embraced the Christian religion, into 
 Illyricum and Greece and thence into Italy, closing his tri- 
 umphant career with the sacking of Rome in 410. 
 
 Contemporaneous with this movement of the Goths there 
 w^as an irruption of the Vandals, Suevi and Alani into Gaul 
 and thence into Spain, where they established permanent set- 
 tlements and partitioned the country among the tribes. In 
 419 Ataulf as king of the Visigoths founded a monarchy in 
 southwestern Gaul. In 429 the Vandal king, Genseric, crossed 
 into Africa with his army and their families and established 
 his authority there. He was recognized by the Emperor soon 
 after and took Carthage in 439. The movements of these 
 Germanic tribes were not solely in the form of attacks, start- 
 ing from their homes beyond the great rivers, but were in 
 part migrations into new homes assigned them by the em- 
 perors. Goths, Vandals and Franks learned Roman methods 
 before achieving great victories. In 451 the Huns under 
 Attila attacked the empire and invaded Gaul. Attila came as 
 the ruler of a great dominion, including not only Huns but 
 many German tribes. He drove the Goths before him, who 
 in turn united with the Romans and aided in his defeat. In 
 455 the Vandals under Genseric invaded Italy from the south 
 and sacked Rome. In 476 Odoacer, the Goth, was proclaimed 
 king by the barbarian mercenaries in Italy, and although he 
 nominally recognized the authority of the emperor of the 
 east and received the style patrician, all real power was in his 
 hands. Though a Goth, he recognized the Roman laws, and 
 used the Roman system oif administering them. He took one- 
 third of the lands of the great proprietors and distributed 
 them among his followers. Odoacer was overthrown, not by 
 Romans, but by the Ostrogoths, who under Theodoric in- 
 vaded Italy with their wives, children and chattels from the 
 
MEDIAEVAL EUROPE 353 
 
 Balkans, where they had tarried when their brethern the 
 Visigoths moved westward. 
 
 Theodoric ruled Romans by Roman law and Goths in ac- 
 cordance with their own customs. He provided for his people 
 from the lands confiscated by Odoacer, a great part of the 
 holders of which had been killed in battle. The Goths were 
 judged by their counts, and where a controvery arose between 
 Goth and Roman, the case was heard by a mixed court. He 
 had his body guard and its chief officers of Goths and also 
 a full establishment of Roman officials. Theodoric extended 
 his rule, not only over Italy, but also over the Germanic peo- 
 ple in Rhaetia and Noricum, and over southern Gaul and 
 Spain. The traditions of the Lombards related that they had 
 dw^elt on the Scandinavian peninsula, whence they had crossed 
 the Baltic into Germany and pressed their way dow^n to the 
 Danube. In 552 Justinian's general Narses employed 5,000 
 of them as auxiliaries in his war in Italy, where they learned 
 of its fertility and desolation. In 568, under the leadership 
 of Alboin, whom they had elected king, the whole nation, men, 
 women, children, slaves and chattels, crossed the Alps and 
 descended into Venetia, whence they spread over northern 
 Italy. They came with primitive German customs, divided 
 into tribes or clans led by elective chiefs called Aldanes. 
 The tribes united in choosing a king when war rendered con- 
 cert of action necessary, but his authority seems to have prac- 
 tically terminated when war was over. After Alboin had been 
 murdered and Clepho, his successor, killed by a slave, they 
 chose to do without a king for ten years, and the tribes ranged 
 over Italy and across the Alps into Provence. Settlements 
 were made by them in various parts of the peninsula along- 
 side the Romans and remnants of the Goths. The Lombards 
 were fierce and warlike, but never established a firm dominion 
 over all Italy, though they became the dominant portion of its 
 population. They retained their ancient customs and laws 
 more persistently than the Goths, and in 643 their king, 
 Rothari, published a compilation of their laws, which was 
 promulgated, not as emanating from his authority alone, but 
 with the counsel of his witan and the assent of the armed 
 
354 EVOLUTIOX OF GOVERNMENTS AND LAWS 
 
 folk-moot of the Lombard nation. It prescribes the were geld 
 to be paid for homicide, laws against armed violence, rules of 
 inheritance and of the obligation of the follower to his lord, 
 and for judicial combats. The people were divided into free- 
 men and aldu, serfs, who tilled the soil. It was the Lombard 
 invasion that caused the imperial governors to remove from 
 Rome to the inaccessible Ravenna, where the shadow of im- 
 perial power lingered for a time, circumscribed within a very 
 narrow compass. 
 
 During the reign of Odoacer in Italy the Salian Franks 
 under their king, Clovis, invaded Gaul from their home on 
 the east of the Rhine. By force of arms he extended his do- 
 minions on both sides the Rhine, and overthrew the empire 
 of the Visigoths in Gaul. He ruled as a fierce and bloody 
 soldier. The Merovingian dynasty founded by him lasted 
 nominally from 481 to 751. With the vast increase in the 
 territory ruled by Clovis and his successors came also a 
 corresponding increase of arbitrary power. The ancient Ger- 
 manic custom of deciding public questions in general assem- 
 blies of the people, which was entirely practicable for a small 
 compact tribe, speaking a common language, became impos- 
 sible when dominion was extended over so large a territory, 
 including many tribes differing in language and customs from 
 each other. The power to rule was acquired through military 
 supremacy, and naturally the king became a military despot, 
 who soon ceased to consult even the warriors of his native 
 race. The king was distinguished from his followers by wear- 
 ing long hair, a crown and using a kingly spear. After the 
 conquest of Gaul Clovis assumed the patrician robe of Rome. 
 At his palace he was surrounded by his companions in arms, 
 bound to his person by a special oath of fidelity. In the 
 royal household the chief was styled Mayor of the Palace, and 
 was the highest official under the king. After him came the 
 Marshal, having charge of the royal stables, the Comes Palatii 
 his legal adviser and assessor, the Treasurer and Royal Sec- 
 retary. These exercised their functions under the king's com- 
 mands at the palace or on any mission on which he might 
 send them. The kingdom was divided into counties, over 
 
MEDIAEVAL EUROPE 355 
 
 each of which was placed a count. In the Germanic part of 
 the kingdom the counties corresponded with the tribes, and 
 in the Roman with a city with its dependent district. The 
 count was miHtary leader, judge and taxing officer. Several 
 counties were under a duke in some parts of the realm, who 
 became the commander of the combined military forces with 
 general control over the counts. The counts and dukes were 
 assisted by deputies, who filled their places when absent. 
 Beneath these there was a headman over each of the hundreds 
 into which a county was divided, who was a judge in petty 
 causes in time of peace and head man of his hundred in time 
 of w^ar. At stated periods the count went into each hundred 
 and disposed of causes in a public assembly, being assisted by 
 chief men of the hundred, whom he called to his aid. In 
 this court the count exercised full power and disposed of life 
 and property. Great crimes were punished with death, but 
 the family of a murdered man might condone the offense on 
 the payment of a sum of money. Trials were conducted in va- 
 rious forms, compurgations and combats were allowed among 
 the Ripuarians, but not among the Salic Franks, and ordeals 
 were resorted to as well as the testimony of witnesses. Be- 
 sides the officers named the king had his bailiffs in charge of 
 the crown lands, from which he derived an important part 
 of his revenue. Aside from these the revenues of the king 
 Vv'ere derived from custom dues on the frontiers, fines and 
 compositions in the courts and taxes charged against each 
 county, collected and remitted by the count. 
 
 By the time of Clovis German people were scattered 
 throughout those parts of Europe that had been dominated by 
 the Romans, and German customs variously modified by new 
 environments, ripened into laws. Even where the Roman 
 element was dominant changed conditions, the decay of learn- 
 ing and stagnation of all commercial and industrial pursuits 
 led to innovations in the law. The diversity of customs and 
 the tenacity with which the invaders held to their own led to 
 the application to each person of the law of the tribe to 
 which he belonged rather than the laws of the territory which 
 he inhabited. The customs of illiterate barbarians did not 
 
356 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 cover anything like the field of the Roman law but were 
 adapted to their needs and were rules of action and of right 
 which they had learned in their tribes. Great diversity of 
 conditions, lack of a government with power extending over 
 any large territory for any considerable period, poverty, lack 
 of intercourse between distant people and general ignorance 
 and illiteracy were conditions which naturally led to very 
 great diversity of customs and local laws. From Scandinavia 
 to Spain and Italy the people of each town and community of 
 any considerable size had its own peculiar usages.^ To col- 
 late and trace the changes in even those rules that became the 
 local laws for considerable districts would be a stupendous 
 task. Traces of many of these local customs may still be 
 found in existing laws, but increasing learning and intercourse 
 constantly tend to uniformity of laws. 
 
 The spirit of the German people had always been opposed 
 to polygamy. Clovis became a Christian and was baptized^ 
 but domestic virtue was something almost unknown in the 
 palaces of the Merovingians. The Franks maintained their 
 own system of laws, which Montesquieu says were compiled 
 after quitting their own country by the sages of the nation,^ 
 and the customs of the German tribes which he subdued were 
 also compiled by Clovis' order. The Franks had reached that 
 stage where title to the land on which the possessor dwelt was 
 recognized, and the Salic law of descent was: "i. If a man 
 dies without issue his father or mother shall succeed him.^ 
 2. lif he has neither father nor mother his brother or sister 
 shall succeed him. 3. If he has neither brother or sister the 
 sister of his mother shall succeed him. 4. If his mother have 
 no sister the sister of his father shall succeed him. 5. If his 
 father has no sister the nearest relation by the male side shall 
 succeed. 6. Not any part of the Salic land shall pass to the 
 females, but it shall belong to the males, that is the male 
 children shall succeed their father."^ The kingdom was 
 treated as the property of the king, and its integrity was not 
 
 ^ Continental Legal History Series, Vol. i. 
 ^ Spirit of Laws, p. 196. 
 ^U., p. Z2^. 
 
MEDIAEVAL EUROPE 357 
 
 protected by a rule of succession which passed the undivided 
 power from hand to hand. On the death of Clevis his ifour 
 sons fought for supremacy, and similar civil wars, the sole 
 excuse for which was the ambition of rulers, were fought in 
 succeeding generations. The Merovings were bloody, treacher- 
 ous and licentious, and like most other dynasties of absolute 
 rulers, later generations inherited the vices without the ability 
 of the founder. Though the nominal rule of the kings con- 
 tinued for four generations thereafter, the real powers af 
 government were assumed by the mayor of the palace in 642, 
 from which time forward the kings were imbeciles and the 
 names prominent in history are Pepin and Charles Martel, 
 mayors of the palace, the latter of whom commanded in the 
 great battle {^2^2') which turned back the tide of Mohamme- 
 dan invasion. 
 
 The history of Spain under the rule of the Visigoths is ob- 
 scure. Though they with the Suevi and Alani gained a lodg- 
 ment there early in the fifth century, it was not until after 
 their defeat by Clovis at Poitiers that they transif erred the 
 seat of their government from Gaul to Spain, about 510. 
 The Goths constituted but a small part of the population. 
 Their government, though monarchical, was elective, and the 
 subject Romans were ruled by Roman law. The church early 
 gained a strong hold on the Spanish people, and in course of 
 time the Goths, who were Arians, through motives of policy 
 were led by their king to adopt the orthodox faith. The suc- 
 cession to the throne was the occasion of a great number of 
 civil wars. The people at the time of the Saracen invasion in 
 711 were divided into a few very rich and a dependent multi- 
 tude of slaves. They offered but a weak resistance to the 
 Mohammedans, who completed the conquest of the country 
 within the next two years and put a final end to the Visigothic 
 rule. The division of the state for governmental purposes 
 was similar to that of Gaul, the ancient Roman civitates being 
 used as the basis of local government. 
 
 The long and vigorous reign of Charlemagne, y68 to 814, 
 stands out in bold relief in a long period of darkness. Of his 
 eminent abilities there can be no doubt, and while his morals 
 
358 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 lacked much of even an approximation to virtue, he yet was 
 far better than his Merovingian predecessors. He not only 
 restored to the kingdom all that had at any time before be- 
 longed to it, but for the first time in history he joined Ger- 
 many, Gaul, Italy and northern Spain in a single empire. 
 Though his government v^as administered on substantially the 
 same system as that of his predecessors, it w^as infused v^ith 
 vitality through his remarkable energy and industry. He w^as 
 not a stranger to any part of his vast empire. Not only did 
 he visit every quarter in person but his special Missi Dominici, 
 traveling legates, were constantly bringing him information 
 of the condition of affairs in every part of the realm. Like 
 all other rulers, who before his time had acquired extensive 
 dominion in the western empire, he felt the charm of the 
 Roman imperial name. In 800 Pope Leo III crowned him in 
 St. Peters as Augustus, Emperor of the Romans. The re- 
 ceipt by Charles of this title at the hands of the Pope carried 
 with it a recognition on the part of the military ruler of the 
 west of the spiritual supremacy of the Pope, and throughout 
 many succeeding centuries this recognition carried vastly 
 more weight, and the precedent was of vastly more value, to 
 the Pope, than the coronation was to Charles, whose dominion 
 had resulted from his own capacity without important aid 
 from the church. In another aspect this recognition of spirit- 
 ual authority was important. It was followed by a recogni- 
 tion of the need of a moral basis for the exercise of authority. 
 He required all his subjects above the age of twelve to take 
 a new oath of allegiance to him as Emperor, to be administered 
 by the local clergy, who were required to warn all, 'That this 
 vow of homage was not merely a promise to be true to the 
 Emperor and to serve him against his enemies, but a promise 
 to live in obedience to God and His laws, according to the 
 best of each man's strength and understanding. It was a vow 
 to abstain from theft, oppression and injustice, no less than 
 from heathen practices and witchcraft, a vow to do no wrong 
 to the churches of God nor to injure widows and orphans, cwf 
 whom the Emperor is the chosen proctector and guardian." 
 He taught submission to the moral law and recognized the 
 
MEDIAEVAL EUROPE 359 
 
 church as the representative of the Holy Empire. The gov- 
 ernment of Charles, like that of his predecessors, w^as thor- 
 oughly despotic in character. It, like all despotisms, derived 
 its qualities from the ruler. To carry his v^ill into effect he 
 selected men who carried out his policies, and like every other 
 great leader he had a keen perception of the merits and capa- 
 cities of men. To preserve the system in its vigor the energy 
 and capacity of Charles himself w^as required. It has been the 
 fate of every despotism to have the successors of a great 
 founder wanting in some, and often in all, the essential quali- 
 ties which render despotism a refuge irom anarchy. Under 
 the weak and good natured reign of his son Louis the empire 
 crumbled. The practice of dividing it as an inheritance among 
 the children of the ruler obtained and, coupled with revolts of 
 local rulers, resulted in the complete dismemberment of the 
 state after the death of Louis. The acceptance of the im- 
 perial crown from the hands of the Pope by Charles bore the 
 full measure of its fruits under the reign af the pious and 
 well meaning Louis, who acknowledged the supremacy of the 
 Pope in spiritual affairs without exacting in return, as his 
 father had done, an acknowledgment by the Pope of the tem- 
 poral superiority of the emperor. The submissiveness of 
 Louis to Papal authority and his exemption of church prop- 
 erty and its tenants from taxes and military service, creating 
 the tenure known as frank almoin, which required merely 
 prayers for the welfare of the emperor and his children and 
 the empire, was of immense advantage to the church and 
 correspondingly weakened the state. The great empire of 
 Charles was divided among his grandsons, and the Prankish 
 principle of division was continued among their descendants. 
 The right to rule was treated as the property of the ruler, 
 rather than a trust exercised for the good of the people. This 
 breaking into fragments, with constant warfare between rival 
 claimants of territory, became chronic among the Carlovin- 
 gians, as it had been with the Merovingians. 
 
 In the latter part of the eighth century the Vikings made 
 their appearance in England and on the coasts of the Prankish 
 empire. They were a hardy race of navigators, dwelling on 
 
36o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the Danish and Scandinavian peninsulas, whence they issued 
 in growing numbers and with increasing boldness to pillage 
 those parts of the country most accessible from their boats. 
 From the time of Tacitus they had been noted as sailors, and 
 they now appeared as pirates and most determined warriors. 
 In an age when might made right, it is perhaps invidious to 
 designate them by a name which is now so opprobrious. It is 
 difficult to draw a clear line between their robberies and those 
 of the organized forces on the continent. That they were in 
 the lead of all other people as navigators is clear, and it is 
 said that they fought with superior arms and protected by 
 coats of mail. That their object in their raids was plunder 
 rather than the acquisition of land, and that they scattered in 
 numerous fleets and attacked widely distant places under sepa- 
 rate leaders, exhibits a difference in methods, if not in prin- 
 ciple. Their raids increased in numbers and boldness, till in 
 911 Charles the Simple granted them an ample district be- 
 tween the Somme and Seine, on condition that it should be 
 held as a fief under his sovereignty. The Norsemen did 
 homage as his vassals, though with ill grace, and accepted the 
 Christian religion. After this settlement the piratical inroads 
 were substantially at an end. 
 
 We have seen how, proceeding from Italy as a base, the 
 Roman power was extended in all directions, and how Roman 
 rule was imposed on the natives of Spain, Gaul, Britain and a 
 portion of Germany. We have also seen how incoming waves 
 from the unknown regions of new and unsubdued people swept 
 back from north and east over all the western portion of the 
 empire, how Goths and Lombards became intermingled with 
 the ancient people of Italy, how Vandals, Goths and Suevi 
 were settled in Spain, and all overthrown by the Saracens, 
 how successive irruptions of Germanic people had broken into 
 Gaul, with the final establishment of the great Prankish em- 
 pire, and how as a result of these movements of people the 
 empire had fallen and the Romans had ceased to be the ruling 
 element in either quarter. In our effort to gain a clear view 
 of the forces which were at work during what is regarded as 
 the dark ages of European history, we have still to trace the 
 
MEDIAEVAL EUROPE 361 
 
 growing power and influence of the church and the monastic 
 institutions. Out of the Asiatic possessions from the incon- 
 spicuous Judean province was brought to Rome the rehgious 
 and moral teachings of a person so obscure as not to be 
 known to the Roman repubhc of his time. That reHgion 
 proclaimed the universal brotherhood of man and fatherhood 
 of God. The Jews looked for a temporal ruler in their Mes- 
 siah, who should establish their supremacy over the other na- 
 tions of the earth. They failed to grasp the meaning of his 
 teachings. They did not perceive, nor have Christians in suc- 
 ceeding ages realized, that the moral principles he announced 
 contain the vital principle on which human relations every- 
 where and at all times should be regulated, tliat these prin- 
 ciples are the universal constitution, on which all governments 
 and all laws must be based in order to develop the highest 
 type of human society and the maximum of human happiness. 
 Though Caesar held power of life and death over all his vast 
 empire, and his will was law to the 100,000,000 or more in- 
 habitants of the countries ruled from Rome, Christs sermon 
 on the mountain to a few followers, unheard and unknown to 
 the great multitude of people of his time, has exercised an in- 
 fluence on the people of after times incomparably superior to 
 that of all the Caesars. Yet its full meaning and significance 
 are but dimly perceived and imperfectly understood, even by 
 the wisest, and to this day rulers and leaders in the most en- 
 lightened lands are regarded as exempted from obedience to 
 the golden rule, "Therefore all things whatsoever ye would 
 that men should do to you, do ye even so to them, for this is 
 the law and the prophets." The impression seems to prevail 
 that the law of necessity applies with especial and controlling 
 force to rulers and law makers, and exempts them from obed- 
 ience to the moral law\ The unselfishness and self-sacrificing 
 spirit of Christ are somewhat distasteful to the average man, 
 and self denial is a virtue seldom looked -for and more seldom 
 found in high stations. 
 
 Whether the moral teachings of Christ be regarded as pri- 
 marily for the happiness of the souls of men in a future state, 
 or as essential to human welfare in this life, is unimportant for 
 
?,^2 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 our present purpose, for we are only concerned with the moral 
 law as a guide to human conduct. There seems little if any 
 room to doubt that Christian doctrines were taught at Rome 
 by the apostles Peter and Paul with some success, and that 
 they gathered about them a community of converts to the 
 Christian faith. In like manner congregations of believers 
 were gained in the great centers of population in the east and 
 in Greece. The leading characteristics of the earliest Chris- 
 tian societies were the. spirit of brotherhood and equality, and 
 contempt for power, wealth and social distinction. For the first 
 three centuries Christians were persecuted, and no attempt 
 was made to gain temporal power with Christianity as a foun- 
 dation. Nothing could present a stronger contrast, than the 
 brutality and viciousness of Roman society as exhibited at the 
 public combats and butcheries in the arena and the licientious- 
 ness and depravity in the palace and houses of the wealthiest 
 and most prominent citizens, and the humble and devout 
 Christian societies of the time of Nero. • With growth in 
 numbers came increased influence and ambition to lead. As 
 early as 313 the existence oif ecclesiastical corporations with 
 common property was recognized by the edict of Milan, and 
 in 321 their right to acquire property by bequest was con- 
 firmed. With the conversion of Constantine the days of ex- 
 treme Christian humility were over, and the clergy labored to 
 add to the wealth and power of the church with such success 
 that, in 370, Valentinian deemed it necessary to prohibit the 
 clergy from receiving bequests from women. Not from any 
 inherent weakness of principles, but from the influences at 
 work on the men who became the representatives of Chris- 
 tianity, the purity of its doctrines became obscured, and the 
 every day worship in the churches became debased to the ado- 
 ration of images and relics, to worship of the virgin and the 
 saints, of spurious pieces of the true cross and other visible 
 objects, supposed to be possessed olf mysterious power by 
 reason of their association with some miraculous manifesta- 
 tion. Purity of life, so distasteful to the fierce and head- 
 strong barbarians, could not be enforced, so in lieu of it the 
 church exacted tribute, penance, and above all faith in the 
 
MEDIAEVAL EUROPE 363 
 
 vicarious atonement, and granted absolution from sins com- 
 mitted. Elaborate ceremonies, altars, images, substitutes for 
 the idolatries of the barbarians, obscured and took the place of 
 the worship of the unseen, living spirit, and of an effort to 
 follow the moral law in its purity. As early as the second 
 century there seems to have been some claim of superiority 
 over other churches put forth by that of Rome. Little by 
 little the Roman bishop assumed authority over the other 
 churches. At the council of Nicaea, 325, the rank of the three 
 patriarchates was established, first, Rome, second, Alexandria, 
 third, Antioch. By the end of the fourth century the claim of 
 precedence had gained such recognition, that questions arising 
 in the various churches of the west were submitted to the Ro- 
 man bishop, whose decretals were accepted as authoritative, 
 and Innocent I, 402-417, conceived the universal ecclesiastical 
 supremacy of Rome. The establishment of this supremacy 
 in practice was of slow and uneven growth. Leo, 440-461, 
 established the right of appeal by a bishop from the decision 
 of his metropolitan to Rome, and thereby assumed pontificial 
 authority to pass judgment on the acts and claims of the 
 metropolitans as his inferiors. Under Gregory I, 590-604, 
 the territorial possessions of the church were greatly increased, 
 and under his vigorous administration the power and influence 
 of the pontificate strengthened. Prior to Gregory III the 
 privileges of the popes had been recognized and confirmed by 
 the eastern emperor, but in 731 Gregory excommunicated the 
 Iconoclasts, and in return the Emperor confiscated the church 
 properties within the territories which still submitted to his 
 rule. Thenceforth the papal authority ceased to be in any 
 degree dependent on the imperial. In 752 Pepin was anointed 
 and crowned king of the Franks by the papal legate Boniface, 
 and in 754 he handed over to Pope Stephen III an extensive 
 territory, which he had wrested from the Lombards, including 
 Ravenna, to be held and enjoyed by the pontiffs of the apos- 
 tolic see forever, and this grant was largely increased by his 
 successor Charlemagne. Thus in the course of about 750 
 years from the days of Peter and Paul, who laid no claim to 
 worldly power, the head of the church extended his power 
 
364 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 over the great ecclesiastical organization which had spread 
 over Europe, and became a temporal ruler over a considerable 
 territory. At the end of the eighth century the head of the 
 church was not only a temporal ruler over the papal states in 
 Italy, but he assumed the power to dispense with the ob- 
 servance of the canonical law, under conditions to be de- 
 termined by himself, and the vast power of conferring 
 privileges on monastic and church establishments throughout 
 the dominions of the western monarchies. The choice of 
 bishops was subjected to his approval and disputes on mat- 
 ters ecclesiastical were appealable to Rome, where full juris- 
 diction was asserted. The conquests of the Saracens in the 
 east removed the rivalry of Antioch, Jerusalem and Alex- 
 andria, and the west became the seat of that faith which was 
 born in Asia. The coronation olf Charlemagne by the Pope 
 was an assumption on the part of Leo of spiritual superiority 
 over the ruler of the ''Holy Roman Empire." Leo recognized 
 the temporal power of Charles, and in return Charles acknowl- 
 edged the spiritual rule of Leo. The weak Louis became sub- 
 servient to the head of the church. Following this exaltation 
 of the head of the church to temporal power came a period of 
 misfortune and of moral degradation, in which the pontificate 
 became a subject of corrupt bargaining, from which it did not 
 recover till the election of Gregory the V, 996-999. Though 
 in course of time despotic characters were developed, the office 
 of Pope was always elective, and the prevailing spirit of the 
 church was democratic. 
 
 Another product of the Christian religion was the monastic 
 establishments, which exercised such a profound influence 
 throughout Europe during the darkest period of its history. 
 The life of the ascetic hermit had been recommended by 
 Gautama as that most favorable to spiritual purification, and 
 religious societies, similar to the monastic institutions of the 
 Christians, were formed under his teachings and became very 
 numerous among Buddhists. The leading resemblance of the 
 Christian and Buddhist societies was in the close association 
 of men, whose lives were devoted to religious exercises and 
 aims, dwelling together in celibacy under rigorous rules of 
 
MEDIAEVAL EUROPE 365 
 
 life, to which they voluntarily submitted. The leading differ- 
 ence was, that the doors of the Buddhist institutions were open 
 to pass out as well as in, and the individual was at all times 
 loaded with the burden of his own salvation through good 
 deeds and purification of his spirit, while with the Christians 
 the doors were closed to those who would withdraw% and 
 spiritual salvation was made to depend, not on deeds and in- 
 dividual merit, but on ifaith and conformity to the require- 
 ments of the church. From the most ancient times the life 
 of the hermit has been adopted by men of a certain peculiar 
 cast of mind, and early in the history of Christianity solitary 
 dwellers in the desert gained great renown for sanctity, among 
 the most noted of whom were Paul and Anthony, natives of 
 Egypt in the third and fourth century. 
 
 The first great monastic society was founded by Pachomius 
 on the island of Tabennae in the Nile in the first half of the 
 fourth century. Under the rules of the order the monks were 
 •distributed into cells, each containing three inmates, known as 
 syncelli. A large cluster of such cells was called a laura, in 
 which was one common place for meals and assemblies. Work 
 and food were apportioned to each according to his strength, 
 and the dress was regulated, consisting of a linen tunic with 
 a goat skin upper garment, which they were not permitted to 
 take off at meals or in bed, but only when assembhed for the 
 eucharist. They were divided into twenty-four groups, and 
 each group into bands of tens and hundreds under decurions 
 and centurions, all under an Abbot, who, as such institutions 
 multiplied, was subject to the Superior. The finances were 
 managed by a steward. Their usual food was bread and 
 water, with occasional oil, salt, fruit and vegetables for luxu- 
 ries. Meals were eaten in silence, each wearing a cowl to 
 hide his face. They assembled twice daily fior common 
 prayer, and for communion on Saturdays and Sundays. They 
 tilled their lands and wove mats, baskets and in course of 
 time manufactured many other articles for sale for the com- 
 mon fund. Pachomius induced his sister to found a convent 
 of nuns under similar rules. At the time of his death Pach- 
 omius had 1,400 monks in his own monastery and 7,000 under 
 
3>^ EVOLUTION OF GOVERNMENTS AND LAWS 
 
 his authority. The order spread rapidly in Africa, Asia, and 
 then into Italy and western Europe. By the fifth century 
 the numbers are said to have increased to more than 100,000 
 in Egypt alone. 
 
 In 529 Benedict drew up his celebrated code of rules, which 
 became the law of the very numerous Benedictine monasteries 
 which spread over western Europe. Worship, study, work, 
 obedience, silence and humility, were the leading ideas in-^ 
 culcated. This code was elaborated in seventy-three chapters. 
 It exhibits a strange mixture of excellent principles and 
 vicious ones. Monasteries formed under this code were vol- 
 untary associations of men, who were required to dispose of 
 all their private property, and who became equals on entering 
 the society, except that their rules were enforced by an Abbot 
 elected by themselves, and all important matters were decided 
 after consultation with the whole body. In large monasteries 
 there were deans selected for merit, and each monastery had 
 its steward, charged with the keeping oif its supplies. All 
 labor was performed by the monks, who took turns in the 
 kitchen. Hours of work, of study and of prayer, were regu- 
 lated, as were all matters of dress and of eating. Confession 
 of faults was enjoined, penances, fasts and scourgings were 
 imposed for breaches of the rules of the order, with expulsion 
 as the ultimate penalty for persistent misconduct. Guests 
 were entertained by the Abbot in separate apartments, and the 
 monks were not allowed to speak to them, except with special 
 permission. A probation amounting to about a year in all 
 was required of applicants seeking to join the order. All 
 strife and contention were prohibited, and no monk could go 
 out into the world without leave of his Abbot. The system 
 required the exercise of the virtues of industry, study, self 
 denial and the recognition of brotherly equality. These lie 
 at the foundation of all social progress. It also exacted rigid 
 observance of religious forms, tending to evil or good ac- 
 cording to the spirit of the individual, and seclusion from the 
 outside, wicked world, which contracted the field of vision 
 and influence and dried up the natural sympathies of the 
 monks, while protecting them from the dreaded contamina- 
 
MEDIAEVAL EUROPE 367 
 
 tion of a corrupt society. It separated the sexes and defied 
 the imperative law of reproduction. In this it prevented that 
 highest and purest human combination, the Christian family, 
 with its voluntary devotion to succeeding generations. Con- 
 vents were also established for females with similar rules. 
 
 The rapid rise of these religious societies was contempo- 
 raneous with the decay of Roman power and the tide of Ger- 
 manic invasion. The monastery with its buildings, its 
 cultivated lands, its work shops and school, became a promi- 
 nent feature of all Christendom, not only on the continent but 
 in the British Isles as well. It was a republic of peace, indus- 
 try, study and devotion, amid external surroundings of war^ 
 cruelty, indolence and ignorance. It grew in wealth and im- 
 portance by reason of its corporate constitution and perpetual 
 succession, and the celibacy of its inmates yielded no heirs 
 demanding an inheritance. It pffered a refuge to those who 
 wished to shun the hardness of the outer world. Other codes 
 for the government oif monastic societies had been formulated 
 before that of Benedict, notably that of Basil, which became 
 generally followed in the east, and numerous modifications of 
 the Benedictine rules were made in after times. Many so- 
 cieties in course of time became rich and licentious. Abbots 
 like other men became fond of power, and the encroachments 
 of monastic holdings on the realms of the rulers excited 
 jealousy and hostility. 
 
 With the decline of the empire of Charlemagne and the 
 civil wars and struggles over succession to local authority 
 arose that form of social organization and land tenure known 
 as the feudal system. With the Romans, as we have seen, 
 land was treated as subject to ownership, bargain and sale in 
 much the same manner as chattels, and there is no sharply 
 drawn line in the law between landed and other property. 
 After the Germanic tribes gained settled habitations and rec- 
 ognized title to tracts adjacent to their dwellings, the title 
 of the possessor was a full and perfect one, and this was 
 termed allodial land. Crown lands, conferred on favorites 
 of the sovereign by the kings in later times, were termed 
 benefices, and were held by a tenure which implied at first, and 
 
368 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 finally expressed, a compact on the part of the beneficiary to 
 support his benefactor. From the practice of conferring 
 estates by kings upon their followers in times of wars and 
 seizures df the lands of enemies arose the feudal system, which 
 became such a prominent feature of the dark ages. The 
 fundamental idea of it was a close union between lord and 
 vassal for war. The ceremonies of conferring a fief consisted 
 of, I. Homage. The vassal with head uncovered, belt un- 
 girt and without sword or spurs, kneeling, placed his hands 
 between those of his lord and promised to become his man, 
 from thenceforth to serve him with life and limb and worldly 
 honor, faithfully and loyally, in consideration oif the lands 
 which he held under him. Homage could be accepted only 
 by the lord in person. 2. An oath of fealty by the vassal to 
 his lord. 3. Investiture, which consisted in putting the tenant 
 into possession. This was done sometimes on the land by 
 the lord or his deputy, and sometimes by the symbolical de- 
 livery of a turf, stone or other symbol. 
 
 The first, and perhaps most important obligation assumed 
 by the vassal, was that of military service under his lord. The 
 amount of service which might be demanded in a year de- 
 pended on the size of the fief and the usage of the time and 
 place. Forty days was the usual term for a knights fee; 
 during which he must attend with his own equipment and at 
 his own expense. Shorter terms were required for smaller 
 estates. Old men and women must send substitutes on pain 
 of ^forfeiture or amercement. The terms of the service re- 
 quired indicate the turbulent and disordered state of society. 
 The wars of the lord were mostly with near neighbors, and 
 partook more of the character of forays of bandits than of 
 organized warfare. In some places the obligation of the vas- 
 sal did not require him to go beyond the lord's territory, or 
 more than a day's journey from it. It was not a system of 
 public defense, but an organization for the private broils of 
 the chief. As incident to feudal tenures the lord exacted: i. 
 Reliefs. A sum of money required to be paid by the heir of a 
 deceased vassal on investiture with the estate. The amount 
 was not regulated by any fixed law and was often fixed arbi- 
 
MEDIAEVAL EUROPE 369 
 
 trarily by the lord. 2. Fines on alienation by a vassal of his 
 estate. This arose from the necessity for the assent of the 
 lord to an alienation by the vassal. 3. Escheats and forfeitures 
 through failure of heirs or acts or omissions which worked 
 a forfeiture of the tenant's rights, in which cases the estate 
 reverted to the lord, and this was aided by the doctrine oif 
 corruption of blood, by which an heir was prohibited from 
 tracing descent through an attainted ancestor. 4. Aids. 
 These were imposed by the lords on various pretexts, notably 
 to raise marriage portions for his sons and daughters, to pay 
 expenses of distant expeditions, to ransom him from cap- 
 tivity, and generally to meet extraordinary demands on him. 
 5. Wardship. During the minority of the heir the lord be- 
 came his guardian, and as such had the care of his person 
 and charge of his estate. This incident seems to have been 
 confined to the system in England, Normandy and some parts 
 of Germany, but in France the custody of the land went to 
 the next heir, and of the person to the nearest kinsman who 
 could not inherit. 6. Marriages. In England, Normandy and 
 Germany the lord assumed the right to choose husbands for 
 female wards, and in later times to dictate the marriages of 
 male wards also. The penalty for refusal to comply with the 
 lord's wish was forfeiture of the value of the marriage. These 
 incidents of vassalage were unknown in the earliest stages of 
 feudalism. They are exhibitions of the tendency of those 
 holding superior power to unjustly extend it. 
 
 The obligation of the lord to his vassal was to protect him 
 in his possession, and in case of eviction to give him other 
 lands of equal value. Where large estates were granted, sub- 
 infeudation followed as a natural sequence, and the vassal in 
 turn granted portions of his estate to sub-tenants, who did 
 homage, swore fealty and 'gave military service. Thus in 
 time there v/as developed a chain of tenancies if rom the king as 
 lord paramount down to the tenants of the smallest holdings. 
 The feudal system was not originally established anywhere by 
 legal enactment of the law-making power of a great state, but 
 was the outgrowth of customs and conditions and the spirit 
 of the times. It therefore was not uniform, but varied in its 
 
,3/0 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 incidents and obligations according to local customs. The all 
 pervading essence of it was that the vassal should support his 
 lord, right or wrong, in all his contests, and the lord should 
 protect the vassal in his holding. The system grew up in the 
 ninth and tenth centuries, and by the end of the eleventh had 
 become general over western Europe, and in 1088 a written 
 collection of feudal customs was made by Beam. 
 
 While the system seems to have had its inception in grants 
 of crown lands to followers oif the king, the turbulence of the 
 times made it desirable for the holders of allodial or frank 
 tenure lands to gain the protection of the neighboring lord. 
 It therefore became common for the holders of such estates 
 to surrender them to the king or neighboring great lord and 
 take them back as feudal tenures. Not only did laymen gen- 
 erally adopt this course, but monastic and church lands were 
 similarly placed under the military protection of a powerful 
 neighbor. The titles and ranks of European nobility de- 
 veloped from this system. In place of the ancient appointees 
 of the Emperors, who were assigned to duties in a particular 
 district as political representatives of imperial power, there 
 was established a fixed connection between the land and the 
 local lord, which the king could not sever. Under the Roman, 
 Gothic and Frankish emperors, to the time of Charlemagne, 
 there was no necessary connection of political power with 
 title to land. Under the feudal system title to land was the 
 basis of all political power. From villein to king the station, 
 rank and power of each was determined by the relation he 
 sustained to land. Slavery disappeared, and serfdom and 
 villeinage took its place. Men were no longer bought and 
 sold, but the villein was completely at the mercy of the owner 
 of the soil to which he was attached. From the permanence 
 of the relation of the lord to the soil arose a barrier against 
 the arbitrary power of the king. The great vassal could not 
 be displaced or denied his local authority and importance. Be- 
 hind him stood the strength in arms of his retainers. The 
 spirit of the times, concurring with the genius of ifeudalism, 
 gave to the great landholders an importance and permanence 
 of power, which ripened into that proud titled aristocracy, 
 
MEDIAEVAL EUROPE 371 
 
 that still exhibits such pretensions of superiority. After the 
 noble orders had become fairly established by transmission of 
 estates and power from one generation to another, and an 
 idea of distinctions of blood and family had taken firm root, 
 kings assumed the power of conferring rank on their favo- 
 rites, independent of territorial possessions. Churchmen did 
 not escape the all pervading distinctions, which rated the idle 
 nobility so ifar above the toiling or trading community. Pre- 
 lates and Abbots ranked as feudal nobles, and swore fealty for 
 their lands, over which they exercised the same power and 
 jurisdiction as the lay nobles. While the lands of churches 
 and monasteries were not generally military tenures, it was 
 i]ot uncommon for them to furnish their quotas to take part 
 in the sovereign's wars. 
 
 Among the early Germanic tribes all public questions were 
 determined in a general assembly of freemen. The custom 
 of holding general assemblies was continued by the Lombards 
 in Italy and by the Franks as late as 882. The capitularies 
 of Charlemagne purport to have been ordained by the king 
 with general consent. Thus the law-making power was re- 
 garded as still residing in the body of freemen through the 
 Merovingian and until the decadence of the Carlovingian 
 dynasty. With the establishment of the feudal system legis- 
 lation ceased in France, and ifor three centuries no general 
 laws were established. The king conferred as much as he 
 pleased with his courtiers and took such advice as suited him. 
 The great nobles in like manner were surrounded by their 
 retainers. To so low a state was the central authority reduced 
 that Louis IX in his Establishments says that the king cannot 
 declare any new law in the territory of a baron without his 
 consent, nor can the baron do so in that of his vassal. The 
 nearest approach to the exercise of legislative authority was 
 the resolutions and agreements of congresses of neighboring 
 lords, who undertook to carry out an agreed policy in their 
 respective dominions. Ecclesiastical councils, of representa- 
 tives of the churches and religious orders, partook more of 
 the character of legislative bodies, and were more representa- 
 tive in composition than any congress of nobles. Their 
 
2^72 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ordinances were of course wanting in the sanction of civil 
 legislative power, but the church had its own system of en- 
 forcing obedience to its behests by working on the credulity 
 and superstition orf an ignorant laity. During the times of 
 which we are now speaking there was no general system of 
 taxation. The king and nobility depended on their estates and 
 perquisities of /feudal tenures to maintain their establishments. 
 As the vassal furnished his own equipment and paid his own 
 expenses in the wars, there was no expense connected with the 
 military establishment. 
 
 The feudal system was not adapted to urban conditions, 
 commerce or industrial pursuits. The feudal lord was a rob- 
 ber and a tyrant, who fortified his castle and encased himself 
 in armor, that he might maintain his advantage over the 
 weak and defenseless. In the cities, especially of Italy, the 
 spirit of republicanism still survived, though often supplanted 
 by despotic rule of one kind or another. Venice from its sea- 
 protected islands struggled into existence first with twelve 
 tribunes, elected annually, to guide the affairs of state. In 
 697 they elected a chief magistrate, called the Doge, who was 
 general and judge with powers not definitely limited, but who 
 acted in important matters with the concurrence of a general 
 assembly. He was sometimes permitted to associate his son 
 with him. In 1032 limitations were placed on his power. 
 He was prohibited from associating his son in the government, 
 and required to act with the consent of two counselors, and 
 to counsel with the principal citizens on important occasions. 
 In 1 1 72 a radical change was effected, and a great council of 
 480 citizens was established. This council appointed the doge 
 and other important officers. At first the members of this 
 body were selected by tribunes chosen by the people, but in 
 course of time they assumed the power of confirming or re- 
 jecting their own successors, and ultimately membership be- 
 came hereditary. In 11 79 the exercise of criminal jurisdiction 
 was given to a council of forty members, chosen annually. 
 The general care of the state was given in charge to sixty 
 councilors, over whom the doge presided. In the fourteenth 
 centurv this council was doubled in numbers. The senate was 
 
MEDIAEVAL EUROPE 373 
 
 annually renewed by the great council. From this body six 
 members were selected, who, acting with the doge as an execu- 
 tive board, treated with foreign states, convoked councils and 
 performed administrative duties. On his election the doge was 
 required to take an oath to observe many restrictions on his 
 power. The method df electing a doge was an exceedingly 
 complicated combination of choice by lot and by ballot through 
 the medium of successive sets of electors. In 1296 the great 
 council was closed, and thereafter all but the families then 
 members of it were excluded. In 13 10 the famous council of 
 ten was created, who, in concert with the doge and his six 
 counselors, became the controlling force in the state. Under 
 this system the government was vigorously, but tyrannically, 
 conducted. The power, wealth, commerce and influence of 
 Venice during the darkest period of European history bear 
 witness to the superior vitality of an organization which car- 
 ries to its head a constant impulse from the whole people, or 
 a large and representative portion, of them. No other Euro- 
 pean state endured so long, or so completely preserved its 
 integrity during those years of darkness. The urDfailing ten- 
 dency, however, for those on whom power is conferred to 
 extend it, is well illustrated by its history, as also is the decay 
 which always attends a rigid stratification of society and the 
 rule of an hereditary aristocracy, which lives without work 
 and despises and despoils an ignorant and oppressed prole- 
 tariat. The vices of the Venetian nobility were the vices 
 which tyrants exhibit everywhere. 
 
 At Rome the idea that the people were the source of all 
 political power never became wholly extinct. The spirit of the 
 church, if not of the Popes, was distinctly republican. The 
 early bishops and their successors, the Popes, were elected, 
 and the idea of hereditary power never obtained in the church. 
 The celibacy of the clergy effectually prevented it. True 
 there were times of gross corruption in the elections, times 
 when the papal chair was filled by fraud, by bribery and by 
 violence. These evils are not strangers to any form oif gov- 
 ernment or system of social or religious organization. They 
 are manifestations of human weakness and vice. Above the 
 
374 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 church at all times shone the pure light of the teachings of 
 Christ, enjoining universal brotherhood and love and de- 
 nouncing every form of oppression and wrong doing. No 
 system of tyranny could justify itself by any recorded word 
 of His. He never attempted to order or advise any form or 
 system of human government. "Be not ye called Rabbi, for 
 one is your master, even Christ, and all ye are brethern. And 
 call no man your father upon the earth, for one is your Father 
 which is in heaven. Neither be ye called masters, for one is 
 your master, even Christ. But he that is greatest among you 
 shall be your servant, and whosoever shall exalt himself shall 
 be abased, and he that shall humble himself shall be exalted." 
 Absolute equality and unselfishness among mortals is the 
 spirit of all his teachings. The lofty ideal of voluntary 
 obedience to the moral law as the ordinance of God, the sole 
 ruler of all, was not sullied by any attempt at creating a gov- 
 ernment to be administered by men and subject to all human 
 imperfections. Nor did he attempt to formulate rules of 
 conduct to cover each specific case, and much less to prescribe 
 rules for the government of property rights. With the single 
 exception of his teachings with reference to (family relations 
 and the sanctity and indissolubility of the matrimonial bond, 
 he declared no rules of civil conduct which would be ordi- 
 narily denominated laws. His teachings were of the moral 
 principles by which every human law, regulation and act, 
 must be tested. Rewards and punishments in a future state 
 of being were promised as the leading incentives to righteous- 
 ness in this life. 
 
 The ancient spirit of Roman republicanism also lingered in 
 the great city, and throughout the darkest of the succeeding 
 centuries there were shadows of consuls, senates, tribunes and 
 other ancient officials of the republic. These temporary and 
 relatively insignificant revivals of the ancient system furnish 
 little or nothing novel or worthy of extended notice here. In 
 the tenth and eleventh centuries the cities af Lombardy, Milan, 
 Pisa, Pavia, Genoa, Florence and other Italian cities, regu- 
 lated their affairs by municipal officers, chosen by themselves. 
 To trace the history of each is impracticable and perhaps 
 
MEDIAEVAL EUROPE 375 
 
 would be unprofitable, except as they exhibit the superior 
 vigor and prosperity of communities which enlist in public 
 affairs the combined energies of many, over the petty despot- 
 isms of the feudal lords. These cities were subject to more 
 or less domination by the emperors, kings and dukes, who 
 from time to time asserted and maintained authority over 
 them with more or less strictness. The superior advantages 
 enjoyed by the people of these cities stand out in strong con- 
 trast to the misery and poverty of the villeins under the feudal 
 barons. Thus Milan in the middle of the twelfth century 
 was far more populous than any of the capitals of the great 
 kingdoms. It was defended by strong walls and deep trenches, 
 within which an industrious population dwelt in security, each 
 enjoying the ifruits of his own industry and foresight. These 
 little republics were not exempt from such jealousies and 
 rivalries as prevailed among the ancient cities of Greece, and 
 destructive wars were waged from time to time. Against the 
 tyranny of Frederick Barbarossa the Lombard cities united 
 after the destruction of Milan, and gained victory and inde- 
 pendence, but their own jealousies and animosities in turn 
 destroyed the league, which had protected them against an 
 external foe. A peculiar and most unfortunate state of affairs 
 developed about the year 1200 from the division of the dif- 
 ferent cities, and of the citizens of each city, between the 
 factions of the Guelphs and Ghebelins. As no well defined 
 matter of principle or even of policy or interest divided these 
 factions, but merely claims of rival princely houses, malice 
 and prejudice held full sway, and no ground for hostility ex- 
 isted which reason or mutual concessions could remove, city 
 was arrayed against city in malignant strife, and in each city 
 faction warred with faction the more bitterly because without 
 justifiable object or excuse. Notwithstanding the rivalries and 
 wars of these petty republics, their wealth and prosperity, 
 their public works and private establishments, present in strong 
 contrast the difference between a free republican city and rural 
 despotism. The city governments were generally modeled 
 largely after that of ancient Rome. 
 
 While Frederick I maintained his rule over the Lombard 
 
376 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 cities, he placed over each a chief officer, called a podesta, in 
 place of the elective consuls. A'fter his expulsion the cities 
 quite generally adopted the plan of electing a podesta from 
 among the citizens of a neighboring city, whose functions, 
 though varying in different cities and at different times, were 
 mainly judicial. He was forbidden to marry in the city or 
 have intimate relations with any of the citizens. The purpose 
 of this was to have a judge who was free from bias or fac- 
 tional prejudice. 
 
 The feudal system was not adapted to urban life or com- 
 mercial pursuits, and the organization of society in the towns 
 never conformed to it. Not only in Italy, but in France and 
 Germany, there was at all times a spirit of independence and 
 an assertion of the right to local government in opposition to 
 the tyranny of feudalism. Along the Rhine, as well as in 
 other parts of both countries, the feudal barons in their forti- 
 fied strongholds became robber chiefs. The people gathered 
 in the towns formed trades guilds, chose councils, and by of- 
 fering an asylum to all who chose to jom them, grew in 
 numbers and in power. 
 
 On the deposition of Charles the Fat in 888 the Frankish 
 empire was divided, and the separate existence of the German 
 empire under Arnulf commenced. In accordance with an- 
 cient customs election was the only title to chief power. Just 
 how or by what classes of people the choice was made is not 
 made very clear, but it seems to have been in a general as- 
 sembly oif the five nations of Germany. The actual choice of 
 succeeding emperors appears to have been made by the no- 
 bility, ratified perhaps to some extent by general assemblies 
 of the people, but with the growth of the feudal system the 
 actual power of the emperor became so slight that it was 
 scarcely sought after. At the election of Lothaire in 1124 
 there was what is termed a pretaxation, or selection of a 
 candidate by ten persons, in whose choice the princes agreed 
 to acquiesce. Later the electoral college was composed of 
 seven members, the archbishops of Mentz, Treves and Co- 
 logne, the duke of Saxony, the count Palatine of the Rhine, 
 the king of Bohemia, and the margrave of Brandenburg. The 
 
MEDIAEVAL EUROPE m 
 
 powers of the emperor are not easily stated, nor were they 
 ever clearly defined, but rather dependent on the character of 
 the person filling the office and the temper of the people at 
 the time. His claim of sovereignty over Italy was given 
 more or less recognition, but never amounted to an effectual 
 direction of affairs. The spirit of the feudal lords was such 
 throughout Germany, as well as all parts of Europe where 
 feudalism prevailed, as to deny the right of any superior to 
 interfere with local affairs in their dominions. The feudal 
 baron was the political entity. He waged war when, with 
 whom, and as he pleased. That now clearly recognized dis- 
 tinctive function of sovereignty, the right to form alliances 
 and make war or peace, was then freely exercised by each 
 feudal landlord. The Emperor of Germany, the French king 
 and other potentates, were powerless to prevent the private 
 wars among their vassals, nor were they able to command 
 their support in contests with outside ifoes. For three cen- 
 turies after the breaking up of the Empire of Charlemagne 
 the history of Europe is not to be traced as that of organized 
 states with settled governments and laws. The first and far 
 most prominent political fact was the growing power of the 
 feudal lords. That power was exercised singly by each in 
 accordance with his own sense of honor. Pride, arrogance, 
 disregard of human life, detestation of labor, of learning and 
 o/f all useful callings, were the prevailing sentiments of the 
 nobility. It is indeed difficult to detect anything good in the 
 system. It was as if the free Germanic tribes had been con- 
 verted into petty despotisms, in which the freeman had be- 
 come s^rfs and the chief a tyrant. The cities and towns of 
 Germany and France were of little political imjXDrtance in 
 those times, as compared with the great landlords and their 
 vassals, and most of them found it necessary to place them- 
 selves under the protection, which often meant at the mercy, 
 of a neighboring chief. In Italy alone the feudal barons were 
 placed under some restraints, and in many instances required 
 to dwell within the town and submit to its regulations. The 
 church and the monastic establishments preserved whatever 
 remained of learning, and alone afforded a bond of union 
 
378 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 throughout the warring fragments of the ancient empire. 
 Within the monastery labor, study, equahty and self-denial 
 were still the precepts, if not generally the practice. The 
 barbarity of the age, however, had its influence on these insti- 
 tutions. Superstitions derived from ancient and impure wor- 
 ships were imported and made part of the stock in trade of 
 the clergy. The pure morality of Christ was too lofty for 
 practical use in an age so degraded, and saints and images, 
 sticks of wood labeled pieces of the true cross, bones of saints 
 and martyrs, and other objects to which pious fraud could 
 give fictitious virtue, were made objects of worship and held 
 forth as possessing miraculous powers. The vice of avarice 
 also seized fast hold of the church of him who so vigorously 
 denounced it, and absolution for the vilest crimes was granted 
 by the church to pious criminals who would pay sufficiently 
 for it. Superstition always has a firm hold on him who feels 
 that his conduct is vicious, and the abbots and clergy of that 
 age found no difficulty in profiting largely from the super- 
 stitious fears of the multitude. Not only were the holdings 
 of religious establishments so increased as to cover a large 
 part of the entire country, but the power and influence of the 
 church became predominant. This would have been of in- 
 calculable benefit if pure Christian morality could have been 
 promoted, but with increase of wealth came corruption of the 
 church, and in many places monasteries and clergymen's 
 houses became seats of vice and immorality. 
 
 Theoretically the monastery was a refuge for the man of 
 peace, who would withdraw from the conflicts of a bloody 
 age, but the spirit of war could not be wholly excluded, and 
 abbots often found it necessary, or deemed it expedient, to 
 arm their followers and take part in the local wars. Nor were 
 the church properties always respected by the barons. Pre- 
 texts were invented by the powerful to seize the lands held 
 to pious uses by force, and there was no superior authority 
 with sufficient strength to insure redress. Corrupt as the 
 religious institutions undoubtedly were, they still rendered 
 succeeding ages an inestimable service. Of all the treasures 
 which one age can pass down to another, that of knowledge 
 
MEDIAEVAL EUROPE 379 
 
 and wisdom, gained from experience and the inspirations of 
 religious teachers, poets and philosophers, is of the most 
 inestimable value. To the church and the monasteries we owe, 
 not merely the preservation and transmission to our times of 
 the sacred writings, but also, the perishable manuscripts in 
 which were written the learning of the heathen world, which 
 the art of printing has now made accessible to the educated 
 people of all nations. Through them, perhaps more than any 
 other medium, the light of the Roman jurisprudence has been 
 rekindled to become again the basis of judicial action through- 
 out Europe. 
 
 The political importance o^f the barons in France, where the 
 feudal system attained its most complete development, is ex- 
 hibited by the following functions and exemptions which 
 they asserted, i. Power to coin money. 2. To wage private 
 war. 3. Exemption from all taxation and tribute except the 
 feudal aids. 4. Freedom from legislative control. 5. The 
 exclusive exercise of judicial functions in their dominions. 
 A system recognizing these claims necessarily left the central 
 authority a mere shadow. The only semblance of general 
 legislative authority seems to have been that exercised by 
 general councils of the church. With all its tyranny the 
 feudal system contained some germs of social order and civil 
 liberty. It recognized a definite obligation resting on the lord 
 to protect the vassal, and was based on the idea, if not the 
 substance, of mutual support and advantage. The terms oif 
 the relation were fixed by general understanding, if not always 
 faithfully observed. Within his demesne justice was ad- 
 ministered publicly by the lord in accordance with the customs 
 of the times, and all mere arbitrary power was theoretically 
 denied, though actually exercised. The system flourished for 
 about three centuries and begun to wane. The forces which 
 undermined it proceeded from two directions, the sovereigns 
 and the towns. The king could not maintain his wars suc- 
 cessfully with the mere temporary support of his vassals. 
 Longer terms of service and money for supplies were indis- 
 pensable to the reduction of a fortified town. Long service 
 could only be gained with pay. Pay could only be afforded 
 
38o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 by a general system of contribution or taxation. National 
 spirit, stimulated by the crusades, and distant wars, inclined 
 public sentiment toward strengthening the hands of the 
 kings. 
 
 At the other end we find the towns, seats of industry, im- 
 bued with a more democratic spirit and inclined to resist the 
 tyranny of the barons. Productive industry and peaceful in- 
 clinations tended to a greater increase of numbers than that 
 among the retainers of those whose only calling was war. 
 Not only did the numbers of the townsmen increase more 
 rapidly through natural multiplication, but they steadily gained 
 at the expense of the nobles through the settlement of villeins 
 and small feudatories in the towns, where they were gener- 
 ally welcomed and accorded burghers privileges. The feudal 
 system, operating throughout the same great field as the mon- 
 astic and church system, reduced the power of the kings to 
 a mere shadow of the absolutism of the ancient emperors. 
 The popes persistently advanced their claims of spiritual super- 
 vision, and in the exercise of religious discipline exerted in 
 fact a powerful influence, and often an arbitrary supervision, 
 over secular affairs. The papal power was rapidly extended by 
 encouraging appeals to Rome in all disputes arising in the 
 church, and then of controversies between contending princes. 
 Thus Lothair was taken to task for divorcing his wife and 
 excommunicated by Pope Nicholas I. Excommunication in 
 some states of society might amount to little more than an 
 expression of displeasure, but in an age of superstition and 
 of general submission to the church it was a heavy penalty 
 depriving the offender of all participation in the ministrations 
 of the church and of all communion with its members. It 
 in effect singled him out as an object of scorn and detestation 
 to be shunned and condemned by all mankind. The proud 
 Lothair at first treated the action af the Pope with contempt, 
 but was forced to humbly sue at the feet of Adrian II for 
 pardon and absolution. The law also added to the force of 
 the papal authority a disqualification of the excommunicated 
 person to testify as a witness in a court of justice, or even to 
 bring an action. A yet more severe weapon wielded by the 
 
MEDIAEVAL EUROPE 381 
 
 head of the church was the interdict, by which not only the 
 offender, but all his subjects, were deprived of religious privi- 
 leges. The churches throughout his dominions were closed, 
 the bells silenced and the dead left unburied. No rites but 
 those of baptism and extreme unction could be performed. 
 The penalty fell on the unoffending subjects with the same 
 severity as on the guilty ruler. Though the power off the 
 church was sometimes successfully resisted, and though kings 
 sometimes in turn ruled the weaker popes and used them as 
 instruments for their own aggrandisement, in an age when 
 all learning was the property of the church and superstitious 
 veneration of pope and clergy was so general, the interdict 
 was an effectual weapon for the execution of papal commands. 
 From the anarchistic conditions which prevailed when 
 feudalism was at its height modern European society has 
 been envolved. The political map of that continent has been 
 subject to many and sweeping changes, and still shows many 
 small states, constantly armed and expectant of war. No 
 firm bond yet binds the people of different nations to each 
 other. Narrowness, distrust and inherited hatreds, still bar 
 the way to sensible combination and the acceptance by rival 
 states of mutual good-will and good deeds. Yet from the 
 disorganized and chaotic mass of the dark ages states with 
 larger territory, more varied popular elements, and better 
 principles have grown up. These we must examine separately 
 and in detail. 
 
 Authorities 
 
 Henry Hallam : History of Europe during the Middle Ages. 
 
 H. M. Gwatkin: The Cambridge Mediaeval History. 
 
 Michaud's History of the Crusades. 
 
 Oman: The Dark Ages. 
 
 Continental Legal History Series, vol. I. 
 
CHAPTER XVI 
 
 Russia 
 
 Our earliest introduction to the inhabitants o/f that vast 
 territory now designated as Russia comes through the Greeks, 
 and exhibits many tribes with varied characteristics. The 
 name Scythians was appHed quite generally to the nomads of 
 the great plains, and also to those who tilled the soil in the 
 rich valley of the Dnieper. Many early tribes are mentioned 
 by Herodotus and other ancient writers, the relationship of 
 which to each other or to modern people it is not our pur- 
 pose to trace. From the earliest times central and north- 
 western Asia has been a breeding ground, from which has 
 issued barbaric hordes that have pushed their way in all di- 
 rections and especially across the flat grassy Russian plains 
 into Europe. Their movements have been in main migrations 
 of tribes with all their families, cattle and belongings, seeking 
 to escape enemies or searching for pasturage or pillage. 
 Among the characteristics of most of these people, when first 
 mentioned in history, are bravery, cruelty, superstition and 
 ignorance. They scalped prisoners, drank the blood of ene- 
 mies killed in battle, sacrificed slaves and horses at the funer- 
 als of dead kings, and had other horrible customs, yet it 
 would hardly be safe to give this as a general statement of the 
 manners which prevailed for any long period df time. It can 
 be said however that cruelty and indiscriminate slaughter of 
 conquered enemies has generally attended the conquests made 
 by the swarms which from time to time have issued from this 
 breeding ground. The peculiarities of southern Russia have 
 rendered it possible for Asiatic hordes to pass quickly with 
 horses, cattle and all their households from their Asiatic seats 
 into the heart of Europe. Level plains with ample pasturage, 
 unobstructed by mountains or great forests, have afforded a 
 broad highway, open to all who might choose to travel it. 
 
 382 
 
RUSSIA 383 
 
 Pastoral tribes, moving with herds and tents, might be equally 
 at home anywhere from the mountain slopes of central Asia 
 to the Dnieper. The prevalence of periodical droughts and 
 resulting failure of vegetation have compelled frequent mi- 
 grations, and the necessities af their situations have driven 
 tribe after tribe along this highway. It was the people dwell- 
 ing in, or who passed through this grass land, that came in 
 contact with Greeks and Romans and successively invaded 
 western Europe. The dwellers in the wooded country lying to 
 the north never come in contact with either ancient Greeks 
 or Romans. 
 
 The foundations of the government which has since ex- 
 tended from the Baltic to the Pacific and from the Arctic be- 
 yond the Black Sea, were laid in the forest regions from which 
 the great rivers flowing into the Baltic, Black and Caspian 
 seas have their sources. The dominant race of Russia is 
 the Slav, classed as Aryans and allied to the Germans. The 
 next most important elements are Finns and Tartars. Inter- 
 mixture has produced a composite of which the prevailing 
 characteristics are Slavic. 
 
 The Slavs as. first made known to us were at a very low 
 stage of social development. The family was the political and 
 social unit with the father as its patriarchal head. Polygamy 
 was allowed, and wives were captured, with or without their 
 consent, as a part of the marriage ceremony. The mir was 
 an expansion of the family and under the direction oif a 
 council of elders called vefcJie. In its deliberations there was 
 little of order, and a decision required the concurrence of all. 
 The idea of the right of a majority to rule did not obtain, but 
 the majority were forced to make such concessions to the 
 minority as would induce them to concur, or to use some other 
 effectual means of enforcing acquiescence. The village lands 
 were owned in common, except the dvor or inclosure im- 
 mediately about the house. A group of mirs was called a 
 volost or pagost and was governed by a council of elders of 
 the jjiirs. A chief of the volost chosen by the elders was a 
 leader in war but with little or no power in peace. Any. 'fur- 
 ther union of different volosts was temporary, and no estab- 
 
384 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 lished authority over tribe or race was recognized. They 
 tilled the soil, used coined money of other nations, and had 
 considerable commerce. They were workers of iron and 
 made swords for export. 
 
 The foundation of the Russian state starts from the ac- 
 cepted date of 862, when the Variagi came to rule over the 
 Slavs of Novgorod and vicinity, by invitation of the people 
 it is said. Rurik, his two brothers and their military follow- 
 ing came to establish order and defend the Slavs. Rurik first 
 settled at Lake Ladoga, and at Novgorod after the death of 
 his brothers. Two other Variagi went down to Kief and 
 became leaders off the Poliane. After the death of Rurik his 
 brother Oleg subdued Kief, extended his dominion over most 
 of the Russian Slavs and in 907 attacked Constantinople and 
 imposed tribute on it. Igor son of Rurik succeeded Oleg, 
 and on his death his widow Olga became regent during the 
 minority of her son Sviatoslaf. She began her reign with 
 bai^barous massacres of the Drevliane, by some of whom her 
 husband had been assassinated, and was afterward converted 
 to Christianity, but her son refused to follow her example and 
 but few of her subjects accepted her faith. On the death of 
 Sviatoslaf the empire was divided among his three sons, who 
 ruled respectively at Kielf, Novgorod and over the Drevliane. 
 Civil wars followed, resulting in the death of two of the 
 brothers and the consolidation of the whole under Vladimir. 
 He was a cruel, sensual despot, who took five wives and kept 
 concubines by the hundreds. He became dissatisfied with the 
 old religion and made war on Constantinople to conquer the 
 Greek Christianity. As terms of peace he demanded the 
 daughter of the Greek emperor in marriage and accepted bap- 
 tism. He then proceeded in a truly autocratic manner to 
 throw down the ancient idols and march the people into the 
 rivers to be baptized. His conversion is said to have been fol- 
 lowed by a radical reformation of character, by the founding 
 of schools and many other works for the good of the people. 
 Vladimir partitioned his dominions among his sons and even 
 gave a portion to a nephew. They, as usual, fought among 
 themselves, and laroslaf became master of all. His reign 
 
RUSSIA 385 
 
 from 1 01 5 to 1054 was a brilliant one and placed Russia 
 among the leading states of Europe. He promulgated the 
 first code of Russian laws. It recognized the avengers of 
 blood and fixed the amount of money to be paid for crime; 
 allowed judicial duels, trial by ordeal of red hot irons and 
 boiling water, by oath with compurgators, and also provided 
 for trial by a judge and jury of twelve men. Punishment by 
 death, whipping or imprisonment was unknown. The rule of 
 the Variagi was not of autocrats with firmly established 
 authority, exercised through a system of subordinate officials. 
 The prince occupied relations similar to the Norse and Frank 
 leaders with their bands of military companions and followers 
 called the drujina. They were his council oif state and his 
 guard. From them he chose governors of towns and con- 
 stituted courts of justice. They ate at his table and exercised 
 a powerful influence on his policy. Sviatoslaf answered his 
 mother Olga's exhortations to become a Christian by saying 
 that his drujina would mock him. He owed his strength 
 to them and in order to retain it was forced to consult their 
 wishes. They were free to transfer their allegiance to another 
 when they chose. Prince and drujina were engaged in a com- 
 mon enterprise and lived from the tribute they extorted. This 
 was fixed arbitrarily, and Igor lost his life by attempting to 
 force further tribute from the Drevliane, after he had fleeced 
 them once. The drujina was divided into three classes, of 
 whom the boyars were the highest. What commerce there 
 was was carried on by the prince and his armed warriors. 
 The mass of the population were peasants — mushiks, and 
 slaves. The leading city in the time oif Rurik and for a 
 considerable period thereafter was Novgorod, which is said, 
 to have then had 100,000 inhabitants. It was a republic with 
 ruling power in the assemWy of citizens, the vetche, which was 
 convoked by ringing the bell. They dictated terms to princes 
 and received ^such rulers as they pleased and on their own con- 
 ditions, laroslaf confirmed and defined the privileges of 
 Novgorod, which subsequent princes were required to take an 
 oath to observe. The revenues he might exact were strictly 
 limited, as also were his judicial and political functions. He 
 
386 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 could not execute justice without the concurrence of the 
 posadnik, nor reverse a judgment nor take a suit away from 
 the city. In conflicts between citizens and the prince's men a 
 mixed tribunal decided. He could impose no garrison nor 
 colony on them. The chief officer of the city was the posad- 
 nik. He was charged with the defense of civic rights, and 
 shared with the prince the judicial powers and the apportion- 
 ment of taxes. He governed the city, commanded the army 
 and directed its diplomacy. The next in authority was the 
 teiisatski, who was military chief and entrusted with the de- 
 fense df the rights of the people as a sort of tribune. Novgo- 
 rod also preserved its spiritual independence by electing its 
 own archbishop, who ranked among the chief dignitaries of 
 the city. The citizens not only elected but retained the power 
 to depose him. Novgorod became a German market, and 
 German settlements were made not only at Novgorod but 
 also at Ladoga and Pskof. Their markets were protected by 
 stockades, and they maintained a monopoly of the western 
 trade. Pskof and Viatka developed later, about the twelfth 
 century, as little republics similarly constituted to Novgorod. 
 The period following the death of laroslaf in 1054 till the 
 appearance of the Tartars in 1224 was one of fierce and cruel 
 wars, due largely to the division of the country among the 
 heirs of deceased princes, aggravated by a conflict as to the 
 rule of inheritance between the old Slavonic leadership of the 
 oldest member of the family, by which brother succeeded 
 brother, and the claims of the sons. From the dreary accounts 
 of bloody cruelty and constant wars no new lesson can be 
 drawn. It has had its counterpart in the history of nearly 
 every nation on earth. The advent of the Mongols in 1224 
 marks the beginning of an important epoch in Russian history. 
 The dominion of Genghis Kahn had already been extended 
 over Manchuria, Northern China, central and western Asia. 
 Nothing could exceed the fierceness and barbarity of his con- 
 quests. Indiscriminate slaughter, rapine, destruction of cities 
 and property, death, desolation and ruin everywhere, were the 
 penalties of resistance, and submission often gained no pro- 
 tection. His armies were recruited from all nations, and with 
 
RUSSIA 387 
 
 prestige once established he drew to his aid a heterogeneous 
 army, made up from all the nations with which he came in 
 contact. Against his hordes the ever jealous and warring 
 petty princes, who ruled in the dismembered states ai Russia, 
 could oppose no effectual resistance. The Russians of that 
 time were not very superior in their rules of warfare to the 
 Mongols. When the ambassadors of the latter came to them 
 asking that they abstain from interference in their contest 
 with the Paluvtsin, the Russians responded by killing the 
 ambassadors. In the battle which followed the Russian army 
 was annihilated. This battle however was not followed by 
 the immediate subjugation of any large territory. The Mon- 
 gol hordes returned to the east, where they were occupied 
 with other conquests. In 1237 Oktai, one of the sons and 
 successors of Genghis, sent his nephew Batu with an immense 
 army into Russia. He quickly overran the grass country of 
 the south and spread ruin and desolation everywhere. His 
 army penetrated the forests to within fifty miles of Novgorod. 
 Mangu, a grandson oif Genghis, took and destroyed Kief and 
 put its people to the sword. The difficulties of a hilly timbered 
 country impeded the progress of a horde accustomed to the 
 open plains, and the obstinate defense of Olmutz in Moravia 
 checked their advance. The death of Oktai recalled Batu to 
 the east, and the wave of conquest had reached its western 
 limit. Though they passed through Hungary into Germany, 
 they gained no permanent foothold beyond Russia. Batu 
 established his capital at Sarai on the lower Volga, where as 
 representative of the great Kahn he ruled in barbaric splendor. 
 By the persuasion of Alexander Nevski Novgorod paid tribute 
 to the Mongols. Russian princes were required to appear at 
 the capital of the Golden Horde and do homage to its chief. 
 In many instances they were compelled to appear in the court 
 of the Great Kahn on the further side of Asia. The rule of 
 the Mongols was that of military chiefs, interested in extort- 
 ing tribute and extending their power, but taking no interest 
 in the local affairs of the people. They left those they spared 
 with their social system, their local courts and laws unchanged, 
 and with possession of their lands, which their nomad con- 
 
388 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 querors had no desire to cultivate. The conquered people 
 were required to pay a capitation-tax, levied on rich and poor 
 alike, to be paid in money or furs. The revenue was col- 
 lected by farmers supported by the" agents and guards of the 
 Kahn. In course of time the princes of Moscow undertook 
 the collection from their own subjects. The Russians were 
 also required to furnish their quota of troops. While the 
 Russian princes were allowed to retain their places, it was as 
 subjects of the great Kahn, to whose decision they were re- 
 quired to submit their controversies instead of fighting them 
 out. The corruption of the Kahn's court is reputed to have 
 been extreme. The Mongols were converted to Mohammedan- 
 ism about 1272. After they ceased to extend their dominions 
 by conquest, their manners solftened and we hear no more 
 of their extreme ferocity. During the time of their ascend- 
 ency the Russians waged successful war with the Swedes and 
 Livonians and strengthened their position on the west and 
 north. With the rise of Poland there was a tendency to Rus- 
 sian concentration about Moscow. 
 
 In the reign of Ivan III the Muscovite autocracy began to 
 again consolidate the Russian states. Novgorod had changed 
 from a democracy, devoted to the common welfare, to an 
 aristocracy divided into discordant factions. In 1470 it sub- 
 mitted to the sway of Ivan. By assuming the role of judge 
 between the warring factions he took away from them their 
 ancient and highly prized privilege of determining all their 
 causes at home. They rebelled and he subdued them and 
 finally abolished the vetche and posadnik, and in 1478 the re- 
 public oif Novgorod ceased to exist. The Tartar empire had 
 broken into fragments, and Ivan finally threw off the yoke of 
 the Horde. Vasili Ivanovitch took away the liberties of Pskof 
 as his father had those of Novgorod, abolished its vetche, 
 carried off its bell, placed his lieutenant in it as governor and 
 transplanted its principal citizens in remote parts, as his father 
 had those of Novgorod. Ivan IV, the terrible, extended the 
 boundaries of his empire and at the same time hardened the 
 autocracy. His merciless executions were numbered by thou- 
 sands and included many of the proudest boyars of the empire. 
 
RUSSIA 389 
 
 In 1556 he assembled the States General for the first time, 
 and he was the organizer of the strelitz or National Guard. 
 The long and vigorous reigns of Ivan III, Vasili and Ivan 
 IV, extending from 1462 to 1584, witnessed the consolidation 
 of the empire, the termination of the policy of dividing it as 
 an inheritance and the centralization of power in the hands of 
 the Czar. The policy of these monarchs was mainly directed 
 toward the firm establishment of the power of the Czar over 
 the nobility. The drujina, who were his companions in the 
 palace in peace and in the camp in war, had no taste for ad- 
 ministrative details, and in the organization of the bureau- 
 cratic system, through which the central power acts on the 
 multitude, it became necessary to call in the more humble and 
 more scholarly sons of merchants and priests. A great num- 
 ber of these bureaus, twenty to thirty, with varying and ill- 
 defined functions were instituted. One had charge of supply- 
 ing the table' of the Czar, the princes of the blood and nobles 
 whom he fed. Others looked after other domestic and court 
 matters. Then there were the prikazin af the palace, of the 
 revenue, of secret affairs, petitions, posts, police, buildings, 
 slaves, monasteries, army, embassies and of the provinces. 
 The revenues were derived from the products of crown lands, 
 paid in kind or in money, from a tax on corn, on fires, cus- 
 toms, crown taverns, fines and confiscations. Certain branches 
 of trade were also monopolized by the Czar and used as a 
 means of extorting money from the merchants. 
 
 Three grades of courts of justice were established, that of 
 the starosta of the district, a magistrate for every hundred 
 plows, the voievod in the chief city otf each province and the 
 Supreme Court of Moscow. Trials were had on written or 
 oral proofs, a party being allowed to testify in the absence of 
 other proof, or by judicial combat. Debtors were treated with 
 the greatest rigor. An insolvent was liable to be flogged daily 
 for thirty or forty days, after which, if no one would pay his 
 debts, he was sold and his wife and children hired out to 
 service. Persons charged with theft, murder or treason were 
 subjected to a great variety of tortures. Heretics and sorcer- 
 ers were burned. Counterfeiters had hot metal poured down 
 
390 EVOLUTION OF GOVERXMEXTS AXD LAWS 
 
 their throats. These were for the humble subjects. A noble- 
 man who slew a mujik was only fined or whipped, and iif he 
 killed his slave there was no penalty, for he might do as he 
 pleased with his chattel. The church was made subservient 
 to the Czar, and the clergy were instructed in the performance 
 of imposing ceremonies, but knew little of religion or morality. 
 
 The army was mostly cavalry. The imperial guard of about 
 eight thousand was made up of young courtiers. All the 
 nobles of the empire, counted at about eighty thousand, served 
 on horseback and defrayed their expenses from the revenues 
 of their lands. The levy of the free peasants amounted to 
 about three hundred thousand. The strelitzi, organized by 
 Ivan IV and kept at Moscow, numbered twelve thousand. 
 Many foreigners were taken into the service. Soldiers fur- 
 nished their own rations mainly for short campaigns. Diplo- 
 matic relations were established with other countries of 
 Europe. The lower orders of Russia were made up of: i, 
 •chattel slaves ; 2, peasants attached to the lands of the nobles, 
 legally free in person but bound to till their masters' lands, 
 and 3. free cultivators, who had the right to move from place 
 to place and change masters. The second class was by far 
 the most numerous. These considered themselves the real 
 proprietors of the land, not as individuals, but as communi- 
 ties, mirs. The mir, not the individual, paid taxes to the Czar 
 and dues to the landlord. The towns were governed either 
 by a voievodni, appointed by the prince, or a starosta, elected 
 by the assembly from among the gentry. In assessing the 
 imposts the starosta convoked the elders of the towns and rural 
 mirs. In the family the father had arbitrary power over 
 wife, children and sons' wives. 
 
 The nobleman always had a retinue of slaves, which he 
 kept about his person and ruled with such rigor as accorded 
 with his disposition. The practice of secluding the women 
 at home and veiling when away prevailed. Drunkenness and 
 debauchery were common in a state of society where illiteracy 
 was almost universal. Superstition and ignorance, there as 
 elsewhere, were inseparable companions. Holy water and 
 relics were more relied on for miraculous cures than the 
 medicines of the physicians, and were perhaps safer in the 
 
RUSSIA 391 
 
 then existing state of the profession. During the reign of 
 Feodor, son of Ivan IV, the regent Boris Gudenof promul- 
 gated the first Ukase forbidding peasants to remove from one 
 estate to another. This was done in the interest of the poor 
 nobility, to prevent the great ones from drawing away the 
 laborers and thereby leaving their estates uncultivated. The 
 number of farmers being inadequate to till more than a small 
 part off the land, the great lords by offering superior ad- 
 vantages could prevent the cultivation of the small estates. 
 The puqx)se of Boris in this order was to enable the poorer 
 nobility to render military service and defray their expenses, 
 which they could not do without the aid of the serfs. After 
 the death of Feodor, who was mentally so weak as to really 
 exercise no authority, and of his brother Dimitry who was 
 probably assassinated, the royal line failed and a time of 
 turbulence ensued. For a very short time Vladislas of Po- 
 land was in possession of Moscow and recognized by the 
 boyars as Czar, but, led by Minin the butcher of Kozma, the 
 Russians gathered and drove out the Poles. Polish dominion 
 was hardly a reality and had no effect whatever on the 
 growth of the autocracy. 
 
 In 1 613 a great national assembly gathered at Moscow, 
 composed of church dignitaries, and delegates oif the nobles, 
 the merchants, towns and distructs. Michael Romanof, a 
 youth of fifteen, was elected Czar, receiving all the votes, and 
 became the founder of the existing dynasty. By raising his 
 father Philaret to the rank of patriarch and associating him 
 in the administration of the government Michael was greatly 
 strengthened. From the companions and military followers 
 of the early princes there had develop^ed a proud nobility, jeal- 
 ous and contentious over questions of precedence. Each in- 
 sisted on maintaining rank equal or sui>erior to that attained 
 l:)y any of his ancestors, and refused to accept a public station 
 lower than the highest held by any of his predecessors. Con- 
 tentions over these matters occasioned ceaseless striife and 
 annoyance at all great gatherings. Feodor III (1676 to 
 T682) resolved to put an end to this trouble. He required all 
 the noble families to deliver into court their pedigrees, that 
 
392 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 they might be examined, on the pretext that he wished to 
 correct errors in them. He then convoked the nobles and 
 with the assistance of the clergy burned all the books of pedi- 
 grees before their eyes. 
 
 This was soon followed by Peter the Great (1689- 172 5) 
 with an abolition' of all nobility, except that based on public 
 service, civil or military. Though thoroughly saturated with 
 the spirit of autocracy and accustomed to use his arbitrary 
 powers without mercy, Peter was still a great reformer of the 
 most practical kind. He perceived the superior industrial and 
 commercial development of Western Europe, and with the 
 spirit of the earnest searcher for knowledge he strove to learn 
 their ways and their arts, not their speculative philosophy or 
 forms of government. He traveled into other lands and even 
 worked as an apprentice in a ship yard in Holland. His eyes 
 were opened to some of the most serious deffects of the Rus- 
 sian system and some of the wrongs habitually inflicted on 
 the weak. He put an end to the seclusion of women and in- 
 troduced western fashions of dress and manners. He abol- 
 ished the flogging of insolvent debtors and the patrarchate. 
 He remodelled the organization of the army in accordance 
 with western methods and began the construction of a navy. 
 He founded St. Petersburg on the Neva, whence he could com- 
 municate with the outside world by sea, having wrested the 
 northern country from the Swedes. He brought into the 
 empire artisans of all classes from every country to instruct 
 his subjects in manufacturing and ship building. He encour- 
 aged trading and divided the merchants into guilds. But 
 with all his innovations he jealously maintained the autocracy, 
 applied the knout and the axe as he deemed best. 
 
 Though the history of the succession of rulers (from the time 
 of Michael shows the usual incidents of intrigues, murders, 
 factions and palace troubles of various kinds, the central idea 
 of an autocracy with unlimited power has been steadily as- 
 serted by the Czars and acquiesced in by the nation. The 
 system of administration has been shaped to eflfectuate auto- 
 cratic rule. The policy of conquest, colonization and Russian- 
 izing has been steadily and successfully adhered to, with the 
 
RUSSIA 393 
 
 result that the Czar now rules over an empire unequalled in 
 many respects by any other in the world. Not only have the 
 Tartars, who so long compelled the Muscovites to pay tribute 
 and acknowledge their supremacy, been shorn of all dominion 
 in Europe, but that vast breeding ground of Asia, whence have 
 swarmed out barbaric hordes to sweep with cyclonic force 
 o\er the states of Europe, has been reduced to the sway of an 
 European state, and is now being colonized by Slavs, who 
 carry with them the customs and the language olf the Mus- 
 covites. The Turks, kinsmen of the Mongols, find in Russia 
 their most inveterate and persistent enemy, and little by little 
 have been forced to withdraw from Europe. 
 
 At the base of Russia's social system it still has the demo- 
 cratic mir and patriarchal family. Though, looked at through 
 western eyes, the government is regarded as arbitrary, cruel, 
 corrupt and almost unmitigatedly bad, it has undertaken and 
 completed a railroad across the Asiatic continent and taken 
 the lead in calling a peace congress to enable European states 
 to reduce their vast armies. Unfortunately this has not saved 
 it from a most humiliating war with Japan, or the great war 
 now raging. Whatever the faults of the Russian system, it 
 must be co'nceded that it is adapted to vast expansion over 
 such people as .it deals with. How well it ministers to their 
 welfare is another subject. 
 
 The most notable legislative acts since the time of Peter the 
 Great are the ukases of 1861 and 1866 liberating the serfs, 
 the judiciary acts of Alexander II and the establishment df 
 the Duma in 1905 by Nicholas II. This was a first step in 
 the transition from an autocracy to a constitutional mon- 
 archy. By the manifesto of Oct. 17, 1905 Nicholas decreed 
 that no measure should become a law without the consent of 
 the Imperial Duma, a freely elected national assembly. 
 Though three successive Dumas have been elected and held 
 their sessions, the transition period is not definitely passed. 
 The Czar still asserts autocratic power so far as he deems it 
 necessary. 
 
 By the ukase of Feb. 20, 1906, the Imperial Council was 
 associated with the Duma as the upper house of the national 
 
394 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 legislature. This Council consists of 196 members, of whom 
 ninety-eight are appointed by the Emperor and the other 
 ninety-eight are elective. Of the elective members three are 
 chosen by the monks, three by the secular clergy, eighteen by 
 the corporations of nobles, six by the academy and universities, 
 six by chambers of commerce, six by the industrial councils, 
 thirty-four by the governments having zemstvos, sixteen by 
 those having no zemstvos, and six by Poland. It is apparent 
 from the composition of the Council that imperial influences 
 dominate in it. 
 
 The Duma is the lower House of the parliament and con- 
 sists of 442 members elected by a very complicated electoral 
 system, designed to give control to the land-holding class, 
 while allowing the poor to vote. In the first two Dumas the 
 radical popular elements predominated. To give the con- 
 servatives control the method of election and basis of repre- 
 sentation were changed, so that no matter how large a popular 
 majority the liberals may have the land-owners will still be 
 able to name the majority of the Duma. 
 
 The Russian parliament thus constituted shares with the 
 emperor the legislative power, except in measures dealing with 
 the organization of the army and navy. The despotism has 
 not yet given up the instruments through which* despotism may 
 be perpetuated. Any member may propose a law, but it must 
 be submitted to the minister of the department affected by it, 
 who may consider it for a month and then has the right to 
 prepare the final draft for consideration of the House. The 
 ministers are accountable to the emperor, not to the parlia- 
 ment. The Czar has the power under extraordinary circum- 
 stances when the Duma is not sitting to issue ordinances 
 having the force of law. While these must be laid before the 
 Duma at its next sitting, the reserved powers to proclaim a 
 state of siege and to prorogue or dissolve the Duma leave the 
 Emperor with absolute power whenever he sees fit to use it. 
 Nevertheless the Duma as the representative body oif the na- 
 tion has a powerful and growing influence and will doubtless 
 dominate when it has capacity to direct public affairs. 
 
 By the law of Oct. 18, 1905, a council of ministers to assist 
 
RUSSIA 395 
 
 the Emperor in the supreme administration was created with 
 a minister president. This council consists of the ministers 
 of (i) the Imperial Court; (2) Foreign Affairs; (3) War 
 and Marine; (4) Finance; (5) Commerce and Industry; (6) 
 Interior; (7) Agriculture; (8) Ways and Communication; 
 (9) Justice; (10) Public Instruction. Aside from these there 
 are the Comptroller and the Emperor's private Chancery. 
 There is no joint or common responsibility of the ministers. 
 Each is accountable to the Czar and to him alone, and may 
 pursue such policy as the Czar authorizes without regard to 
 the views of the heads of other departments. The Ministers 
 however meet in Council for consultation. They are presided 
 over by a President of the Council of Ministers, named by 
 the Czar. Important matters arising in either bureau may be 
 discussed in these meetings or taken to the emperor privately 
 as he may prefer. Unity of control and direction rests in 
 the Czar alone. 
 
 Each minister is assisted by a council which seldom meets, 
 and also has one or two assistants who actively participate in 
 the transaction of affairs. Most o/f the bureaus are divided 
 into departments according to the nature of their duties, and 
 have officials and clerks charged with the minor details. 
 
 The Senate, established by Peter the Great and designed 
 by him as the chief governing body under him, though now 
 of far less importance than the Council, has seven depart- 
 ments exercising administrative functions, through which the 
 laws are promulgated, the acts of governors examined and 
 their conflicts with Zemstvos adjudicated. Two departments 
 are the courts of review and constitute the highest court of 
 the empire, and another pronounces judgments in political 
 causes. The Holy Synod, made up of metropolitans and 
 bishops, rules religious affairs. 
 
 For purposes of administration the Euro])ean empire is di^ 
 vided into fifty gnherniya in Russia and ten in Poland. The 
 \siatic dominions are divided into the lieutenancy of Caucasia 
 and the governments of Turkestan, Stepnoye, East Sil>eria 
 and Amur. Each government is divided into districts, nye::d, 
 under a police captain, ispravnik. At the head of each guber- 
 
396 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 niya is a governor. Formerly his powers were those af a 
 local autocrat, as representative of the Czar, but now they are 
 greatly curtailed. He is assisted by a vice governor and a 
 government council, which however is merely advisory. By 
 the ukase of 1785 Catharine II confirmed on the dvorniastvo, 
 the nobility of each province, the right to name the local 
 functionaries and justices,, and to supervise and control the 
 local administration, justice, police, finances and all matters 
 of local interest. Assemblies were held once in three years 
 for these purposes, and they appointed the ispraimiks and local 
 justices. Their assemblies sat, elected boards, and appointed 
 commissions to inspect the governor's accounts, but in fact 
 exercised very little influence on the administration, which 
 received its impulse from the central authority. In 1864 the 
 Zemstvo or territorial assembly was established, composed of 
 representatives of all the orders. The peasants, the towns 
 and the nobility, each elect their representatives separately. 
 The representation is apportioned arbitrarily, so that the peas- 
 ants, who constitute more than three-fourths of the whole, 
 have less than forty per cent of the delegates, and the million 
 landowners have over forty-five per cent, the town people 
 choosing the balance. The mode df election by the peasants is 
 that the heads of families of the mirs choose a council for the 
 volost, who choose electors to the zemstvo. These convene 
 and name the delegates, glasuyie, who compose the zemstvo. 
 The landowners have a voice in the election of their dele- 
 gates according to their holdings, the small proprietors voting 
 collectively. Zemstvos are not established in all the govern- 
 ments, there being only thirty-four at present. The powers 
 conferred on the dvorniastvo was substantially all transferred 
 to the Zemstvo with others added. There is also a Zemstz'o 
 of the district with local powers corresponding to those of the 
 province. These relate to all matters of purely local con- 
 cern. They apportion the taxes, maintain roads and schools, 
 but are limited in their expenditures by the demands of the 
 general government on the revenues. To much of their legis- 
 lation the governor's assent is necessary, even to the repair of 
 roads and the increase of local taxes. To other acts the 
 
RUSSIA 397 
 
 ratification of the Minister of the Interior is required, such 
 as large loans. All resolutions of the provincial ::emstvo must 
 be submitted to the governor, v^ho has a suspensive veto. He 
 must send in his decision within eight days. If he vetoes, the 
 ::cmstz'o must again consider it, and if again passed it is final, 
 except that the governor may still refer it to the minister. 
 The controversy is then decided by the Senate. Sessions are 
 held annually. For the execution of its will the zemstvo is 
 dependent on the governor, over whom it has no control. 
 The demand for schools and the exhibition of a willingness 
 to pay for them evidence the value of the influence of the 
 governed in their own behalf, the mujiks showing the most 
 interest and liberality of any class in that direction. The 
 Avorst difficulty met in building up the educational system is 
 the interference of the inspectors, who are jealous of the e/f- 
 fects of education. A remarkable piece of local legislation, 
 quite in keeping with the ancient system of land tenures, is 
 compulsory mutual insurance of the property of the peasants 
 against fire. Among the institutions introduced by the zemst- 
 z'os were savings banks, local postal facilities, construction of 
 highways and railroads, draining of marshes and planting 
 trees on the steppes. The main characteristic of the work 
 thus far performed by them is that it is 'for the general good 
 of the i>eople. To check the freedom of expression in the 
 zemstvos, by a subsequent edict it was provided that the chair- 
 man should be nominated by the minister, and that he might 
 interrupt any si>eech or stop the consideration of any motion 
 or resolution, which in his opinion was inimical to the gov- 
 ernment. The different zemstvos were also prohibited from 
 communicating with each other. 
 
 At the head of the Judicial System of the empire stands 
 the Senate. In reviewing the proceedings of inferior tribu- 
 nals it limits its consideration to questions of law and affirms 
 or reverses the decision of the lower court, and in case fur- 
 ther proceedings are required remands the cause to it. It 
 exercises original jurisdiction in the trial of accused members 
 oif the administration, and is the auditor of accounts. It is 
 a department of heraldry and the supreme court for the trial 
 
398 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of Tpolitkral causes and offenses against the State. It has juris- 
 diction over differences between members of the administra- 
 tion, as well as between the governors and the zenvstvos. The 
 department of supreme api>eal is divided into two sections, 
 one for civil and the other for criminal matters, which have 
 jurisdiction of causes appealed from all parts of the empire. 
 The judges of these departments, as well as of the district 
 courts, are appointed by the Czar. There is a nominal right 
 •of presentation by the remaining members of these courts 
 of candidates to fill vacancies, but their choice must be sanc- 
 tioned by a procureur-general, who represents the state as 
 one of the officers of each court. This right of presenta- 
 tion does not extend to the presidents or vice-presidents of the 
 court, but only to the other judges, and the candidates pro- 
 posed may be accepted or not. 
 
 In order to give the judges an appearance of independence,, 
 their tenure is for life, unless convicted of some offense, but 
 while they may not be arbitrarily removed from office, they 
 may be transferred to a distant province and thus in effect 
 condemned to exile. Procureurs are appointed by the ministry 
 and removable at pleasure. 
 
 Substantially contemporaneous with the emancipation of 
 the serfs came a reformation of the judicial system. At the 
 base of it are two sets of courts. For the peasants there are 
 volost courts, elected by and having jurisdiction over peas- 
 ants only in the volost, which may include one large or several 
 small mirs. The viirs name eight candidates from among 
 the peasantry, from whom the chielf of the volost selects four 
 to sit. To be eligible a man must 'be thirty-five and able to 
 read and write, where such selections are practicable. The 
 presiding judge of the court is selected by the assembly of 
 elders of the volost. The court sits at least once a fortnight, 
 usually on Sundays and holidays. It has jurisdiction in civil 
 causes involving one hundred roubles or less, and in petty 
 misdemeanors where the maximum punishment is a fine of 
 thirty roubles, seven days' imprisonment or six days' work or 
 twenty strokes with the rod. Their decisions are not required 
 to be in accordance with general law, but are governed by the 
 
RUSSIA 399 
 
 local customs. The rod however may only be used on the 
 strong who are able to bear it. Of petty matters their juris- 
 diction is extensive, covering those concerning communal 
 rights, inheritances and other matters growing out of the 
 peculiar organization of rural communities. Appeals are al- 
 lowed to the assembly of cantonal rural chiefs in civil cases, 
 where imprisonment or corporal punishment is imposed. By 
 the reforms of Alexander II justices of the peace elected by 
 the district zemstvos had jurisdiction over all minor civil 
 cases involving five hundred roubles or less and criminal cases 
 punishable by one year's imprisonment or three hundred 
 roubles fine, but by the ukase of 1889 these, except in the great 
 cities, were abolished and in lieu cxf them the office of rural 
 chief was created for each volost with substantially the same 
 jurisdiction, and also various administrative duties. These 
 chiefs must be landowners belong to the local nobility and are 
 paid a salary by the state. They are nominated by the gover- 
 nor of the province on consultation with the marshal of the 
 nobility of the district and confirmed by the Minister of the 
 Interior. The chief has supervision of the financial and 
 police affairs of the commune and nominates the members of 
 the peasants' volost court. From the deci'sions of the chief an 
 appeal lies to the district assembly of canton chiefs. They 
 receive in rural districts 2,200 rou'ble^ per year. The district 
 courts, which are given general original jurisdiction in both 
 civil and criminal causes, have three judges and a jury. The 
 judicial reforms of Alexander II, which unfortunately have 
 not been steadily carried into effect, contemplated the com- 
 plete separation of judicial from administrative powers and 
 public trials on the oaths of witnesses with the aid of advo- 
 cates, following the most advanced models of western nations. 
 Of these district tribunals there were in European Russia 
 about sixty, and over them nine appelate courts located at 
 St. Petersburgh, Moscow, Kazan, Saratof, Kharakof, Odessa, 
 Kief, Smolensk, and Vilna. In trials by jury the court ans- 
 wers to the law and the jury only as to the facts. The un- 
 expected acquittal of Vera Zassulich for the murder of Gen- 
 eral Trepof resulted in subsequent denial of jury trial in simi- 
 
 k 
 
400 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 lar cases, which were transferred to a department of the 
 senate or heard before a mihtary court. Reforms in the 
 judicial system from the time of Catharine II to the present 
 have been introduced modified and abandoned, and with the 
 theory of a complete centering of executive, legislative and 
 judicial power in the Czar still fully recognized, all innova- 
 tions are to be looked on as tentative. Until the judiciary be- 
 comes independent of the will of the Czar, no permanent 
 separation of powers can be assured. The ministry are still 
 afraid oif an independent judiciary, and the system of ap- 
 pointments is calculated to insure a degree of subserviency in 
 the courts. The vast empire is ruled in fact by the ministers 
 and their agents. 
 
 In the actual administration of the government the police 
 department plays a most important part. There are two 
 classes of police officers, one the regular under the Minister 
 of the Interior, the other poHtical, directly under the Czar 
 himself. In the districts into which the provinces or govern- 
 ments are divided the chief officer is the ispravnik, a police 
 officer. From the time of Catharine II till the emancipation 
 these officers were elected by the nobility, but are now ap- 
 pointed by the governors. A great multiplicity of duties de- 
 volve on the police officers. Through them all administrative 
 orders must be executed, conspiracies must be detected, con- 
 spirators arrested and prosecuted. They are health officers, 
 censors, prosecutors in the lower courts, overseers of recruits 
 and soldiers of the reserve and supervisors of passports. In 
 the small towns and country there is no protection against the 
 arbitrary exercise of their authority. It was through the 
 famed Third Section of the Chancellery, the state police, that 
 the arbitrary autocratic powers of government were mainly 
 exerted. Though this has been in form abolished, its sub- 
 stance is still preserved, and police agents enter dwellings, as 
 well as all other places, at any time of day or night without 
 process, and make searches, seizures and arrests at will. The 
 governors of provinces close at will any industrial establish- 
 ment, forbid an individual to reside in a city, and take politi- 
 cal suspects away from the regular courts. The government 
 
RUSSIA 401 
 
 may at any time place any province or district under a "state 
 of extraordinary protection" under the most arbitrary military 
 rule. By administative decree the publication of any periodi- 
 cal or other publication may be suspended or prohibited, and 
 an educational establishment may be closed. In every city of 
 any importance there is a colonel or captain of police to v^hom 
 no place may be closed and from v^hom nothing may be con- 
 cealed. His business is to keep all under surveillance, officials 
 as v^ell as citizens. To aid him he has secret agents scattered 
 everywhere. Every indiscreet remark is reported, often v^ith 
 direful consequences. 
 
 The main purpose of the Czar in maintaining his secret 
 police w^as to have a system through w^hich he could keep in- 
 iformed of the doings, not merely of his subjects in general, 
 but of the officials of the empire as v^ell. Of all the difficulties 
 under which an autocrat ruling a vast empire labors, none 
 is greater or of more moment than that of gaining reliable 
 information concerning the multiplicity of affairs which he 
 is called on to direct. A secret police, composed exclusively 
 of trustworthy and upright men, would be of incalculable 
 value to him, but made up of corrupt and unreliable ones it 
 becomes a means for perverting the best of intentions on the 
 part of the ruler. 
 
 The constitution of Russian society, while now undergoing 
 some changes, is still essentially the same as for several hun- 
 dred years. More than eighty per cent oif the total population 
 are classed as peasants and live mainly in their rural villages, 
 mirs. The mir is, and has been from a date long anterior to 
 the establishment of the empire, a democratic self-governing 
 community. It holds its lands in common and pays its dues 
 to the government as a unit. The aft'airs of the mir are man- 
 aged by an assembly including the heads of all the families. 
 The tillable lands are divided and apportioned to each work- 
 ing unit. Women charged with the support of a family are 
 entitled to take part in the. assembly. Between the members 
 of the community there is equality of right in the village 
 property, but the culture is not in common. Pasture lands, 
 and in some cases meadow and timber lands, are used in com- 
 
402 EVOLUTION OF GOVERNMEXTS AND LAWS 
 
 mon, the hay of the meadows and trees of the forest being 
 divided for use. The custom of building their dwellings in 
 village .form has long been maintained, and communities which 
 have settled in the United States have brought this custom 
 with them. In the settlement of the affairs of the mir unani- 
 mous agreement is required. All are required to attend meet- 
 ings of the mir. The majority may not enforce its will on 
 the minority. The assembly of the mir may be convoked by 
 the call of any one. The chief officer is the Starosta, who is 
 paid by the mir and is charged with the preservation of order 
 in the community. He supervises the roads, manages the 
 communal funds, the schools and hospitals if any, and any 
 other public institutions of the mir. He looks after the col- 
 lection of the taxes and deals with the government officials in 
 payment of public dues and other matters. He is a general 
 police officer and arrests persons charged with offenses. He 
 is the general business representative of the mir, but in all 
 things he is its servant, not its master and must carry out 
 its orders. 
 
 A collection df mirs, varying to include from six hundred 
 to four thousand persons who were formerly charged with 
 poll tax, is called a volost. At the head of this is a starschina, 
 elected by representatives of the mirs, who holds for a term 
 of three years. He is assisted >by a board, volostnoye pravl- 
 myc, made up of all the starostas of the mirs or their assist- 
 ants or si>ecial representatives chosen by the mirs. Important 
 matters are decided by this board and minor ones only by 
 the starosta. Aside from these officials the mirs and board 
 employ such agents as their affairs require and pay them for 
 their services. An important personage in the mir is the clerk, 
 who keeps its records, and though without any recognized 
 authority, by reason of superior education often wields great 
 influence. The scarcity of persons able to write frequently 
 makes it necessary to bring a clerk from without. 
 
 The zwlost assembly elects the judges, appoints representa- 
 tives to district assemblies, and provides (for roads, schools, 
 hospitals and public works which a single mir cannot under- 
 take. The assembly of the mir has power to discipline its 
 
RUSSIA 403 
 
 members, even to expel them, and to admit new ones. Meet- 
 ings are usually held in the open air and are without any set 
 form of procedure. Sunday after mass is a favorite time of 
 meeting. While unanimous agreement is necessary to a de- 
 cision in the mir, a majority may decide in the volost assembly. 
 
 Similar in principle to the peasants' commune is the artel, a 
 name given to an association of workmen engaged in the same 
 trade and working in concert. A head man is elected by the 
 members, who represents the artel m its dealings with em- 
 ployers and the outside world. The wages earned by all are 
 equally divided among the members. The artels are usually 
 small, seldom exceeding twenty in number, and they expel 
 and admit members at will. 
 
 All nobility in Russia starts from official station. Two 
 sorts are recognized, hereditary and personal. The heredi- 
 tary from the time of Peter are the officers of the army having 
 the grade of ensign or higher and civilians of equal grade and 
 their descendants. Inferior public servants belong to the per- 
 sonal nobility and are merely free citizens. The number is 
 necessarily very great, about six hundred thousand hereditary 
 and three hundred and fi(fty thousand personal. The feudal 
 system never obtained in Russia, and it has no nobility of the 
 kind developed in western Europe having hereditary political 
 power. There are fourteen grades of rank. From the time 
 of Peter special dignities have been conferred by special di- 
 ploma making about one hundred counts, some fifteen princes 
 and sundry barons. Titles are inherited equally by all the 
 children. There is no primogeniture. Till the time of Alex- 
 ander II the nobility enjoyed, in common with the merchants 
 and clerg}^ the privileges of exemption from militar}^ con- 
 scription, payment of poll taxes and corporal punishment. Of 
 these the first has been taken away, and the others have 
 ceased to be distinctions through the abolition of the poll tax 
 and flogging. 
 
 Prior to the emancipation act of February 19, 1861, the title 
 to the lands of the empire was mainly in the nobility and the 
 crown. There was assigned to each village a tract for the 
 cultivation and use o/f its inhabitants, but thev wxre bound to 
 
 I 
 
404 EVOLUTIOX OF GOVERNMENTS AND LAWS 
 
 work such portion of their time as the landlord exacted, — 
 usually one half — on his estate without pay. The allowance 
 of land to the peasant to cultivate for his own use was in 
 effect but affording him the means to live. All the benefit of 
 his strength, in excess of that necessarily expended for his 
 maintenance and the support of his family, went to the land- 
 lord. The emancipation act of 1861, which applied only to 
 the serfs of the nobility, was designed to allow them as their 
 own the lands which had been assigned to them for their in- 
 dividual support theretofore, but it is said that through defects 
 in the practical execution oif it their holdings were in fact 
 reduced, and thus, so far as land is concerned, they were 
 rather impoverished. The act of 1866 emancipating the 
 peasants on the crown estates was much more liberal and gave 
 them twice as much as they had been allowed before. 
 
 In Russia the usurer is an important factor, and the wide 
 fluctuations in crop returns render the peasants peculiarly at 
 his mercy. To pay taxes, if not merely to sustain life, they 
 must frequently borrow, and to borrow is to invite ruin. Se- 
 curity for small loans is frequently taken in the form of 
 labor contracts to the neighboring landlord, from which the 
 laborer finds it difficult to extricate himself. The liberation of 
 the personal servants of the landlords at the time of the eman- 
 cipation and the loss of their lands by misfortune or improvi- 
 dence by peasants have produced a considerable class of land- 
 less farm laborers, which seems to be steadily increasing. The 
 peasant proprietors hold about twenty-seven per cent of the 
 lands of the empire, though the peasants number more than 
 three-fourths of the whole population and pay the great bulk 
 of the taxes. The remainder is held by the landlords and the 
 crown, and is cultivated largely by peasants under what are* 
 termed bondage contracts, contracts of service for advances 
 made. But twenty-one per cent of the whole area of European 
 Russia is cultivated. Serfdom did not extend over all Russia. 
 Siberia, the country about the White Sea and the Cossacks of 
 the south rejected it. The Tartars of the east, the Rouman- 
 ians, the German colonists and the Finns, as a rule maintained 
 their liberties. By the emancipation the serfs were not re- 
 
RUSSIA 405 
 
 lieved entirely of the burdens of their landlords. The peas- 
 ants, in lieu of their former services to the landlords, were 
 bound to pay an annual tribute, varying in amount in differ- 
 ent places according to circumstances. By a subsequent ar- 
 rangement the state undertook to aid the peasants to redeem 
 and discharge the perpetual rents for a lump sum, loaned to 
 them by the state, thus releasing the peasants from all obliga- 
 tion to the landlords and transferring the obligation to the 
 state. 
 
 The village system since the redemption is still maintained 
 as before, and the lands still belong to the inir as a unit. 
 Cities in Russia are of far less importance than in any other 
 equally great country. The people are divided into two main 
 classes, the merchants, who have a certain amotmt of capital 
 and pay license dues in return for priviliges accorded them, 
 and the mechanics and others of the humbler sort. The mer- 
 chants are divided into three guilds ; the first pay five hundred 
 roubles a year and have the privilege of trading throughout 
 the empire and abroad ; members of the second are limited 
 to home trade, and the third are the small traders. Each 
 guild has its board and elects its head. Prior to the emanci- 
 pation merchants were prohibited from owning inhabited 
 lands, i.e. estates with serfs. This restricted their holdings 
 to city property. The restriction is now removed. 
 
 A peculiarity of Russian society is the scarcity of profes- 
 sional men. The medical profession languished mainly from 
 w^ant of schools. The legal profession had no standing, pro- 
 cedure in the courts being secret and conducted by officers of 
 the government. The reforms of Alexander II make the 
 courts open to all classes equally, require trials to be public 
 and allow parties to be heard in person and by attorney. This 
 has given life to the profession oif the lawyer. At so low an 
 ebb was legal training, that it is said that a considerable num- 
 ber of the judges of the courts of general jurisdiction had no 
 previous training in the law. The leading peculiarities of 
 Russian society are its division into two main classes, the 
 peasants and the office-holding and land-owning nobility, and 
 the meagre numbers and small importance of what in some 
 
4o6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Other countries make up iwhat is termed the middle class, but 
 which in fact is morally and intellectually the highest. Russia 
 is also peculiar in that the number of its landless and depend- 
 ent class is smaller than in any other great country. 
 
 The educational system is yet in its infancy and illiteracy is 
 the rule all over Russia. This is not due to any disinclination 
 to learn or want of capacity in the children. No where are 
 more apt students to be found. At the great cities there are 
 universities, which in many respects rank well with the best 
 schools of Europe, but are afflicted with excessive govern- 
 mental supervision. They are revolutionary hot beds, and 
 rigid police supervision of the students is regarded as indis- 
 pensable. The natural spirit of the students induces them to 
 revolt against this interiference, and riots are not infrequent. 
 The government has the impossible task of giving a liberal 
 education to the youths and still retaining respect for despot- 
 ism. Scattered through the provinces are high schools, at 
 which instruction in the dead languages is given along with 
 other branches. Primary schools are yet more numerous, but 
 hardly one-tenth of the children are as yet afforded even the 
 rudiments of education. Only about one-ninetieth of the 
 revenues raised from the people is applied to schools. The 
 army, navy and public officials absorb the lion's share. To the 
 means furnished the schools by the government must be ad- 
 ded about as much more raised by the zemstvos, besides that 
 paid for private instruction. The people everywhere show 
 great interest in obtaining the 'benefit of schools, and the peas- 
 ants especially exhibit much liberality in taxing themselves to 
 establish them. 
 
 Railroads and telegraphs are mainly in the hands of the 
 government, and a system of banks is also maintained. Manu- 
 facturing industries are still in a very backward state. 
 
 In religion most of the Russians adhere to the Greek Church. 
 The clergy, who are dependent on the Czar for their positions, 
 have for centuries been the mainstay of his authority. Over 
 an illiterate and devout people they exercise a most powerful 
 influence, and the duty of submission to the Czar's authority 
 is constantly inculcated by every priest in the land. Perhaps 
 
RUSSIA 407 
 
 no other people in the world are so thoroughly loyal to their 
 chief ruler as they, and this is largely due to the influence of 
 the clergy. 
 
 In its governmental system Russia seeks to administer the 
 affairs of its vast empire from a single head. Its territory is 
 not divided into either tributary or self-governing dependen- 
 cies, but is a compact and largely homogeneous state. The 
 central power connects itself directly with each part down to 
 the peasant village. It allows and in fact derives great ad- 
 vantage from the democratic mirSj which in effect reduce the 
 number of units with which it has to deal from that of the 
 individuals to that of the mirs or volosts. Local selif-govern- 
 ment over limited areas aids autocracy. The force of the 
 volost, made up of unlettered peasants, is insufficient to en- 
 danger or interfere with the central authority. The recently 
 established zemstvos, if permitted to consult and combine with 
 one another, might check arbitrary power, but such combina- 
 tions are jealously prohibited, and the zemstvo is not sustained 
 or invigorated by that inherited strength, which the primitive 
 village has brought down from antiquity. Its powers are 
 more strictly limited and its functions not generally 
 comprehended. 
 
 The system of laws which prevails exhibits peculiarities 
 due to the manner of its development. Although it cannot 
 be said that all its laws are an indigenous growth, and that 
 none have been borrowed from other nations, the system is 
 distinctly Russian. It is in main a product of local customs, 
 peculiar to Russia, which furnish the laws of the peasant 
 communities, and of edicts of the Czars. There never has 
 been an adoption of the legal system of any other state or 
 people. From time to time the Czar has issued his ukase, 
 covering any subject he had in mind in his own way, without 
 regard to anything which his predecessors had done. Russian 
 Czars have frequently been bold innovators. As a reformer 
 the Czar has ideal conditions for action. He makes the law 
 as he wills. The emperors have for many generations realized 
 the necessity of governing in accordance with declared prin- 
 ciples, but they have been unwilling to part with their judicial 
 
4o8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 power, or speaking more accurately, with the power to set 
 aside and disregard their own rules wherever deemed ex- 
 pedient. The laws therefore have been only for the guidance 
 of subordinates, and then only so far as seemed consistent 
 with the policy of the bureaucracy. There have been various 
 compilations of the laws of the empire, beginning with that di 
 laroslav in the tenth century and ending with that of Speran- 
 skiy in the reign of Nicholas I. This last compilation fills 
 forty-five, quarto volumes, containing the laws of the empire 
 arranged in chronological order. These laws have been con- 
 densed into a code, Svod, classified by subjects, and included 
 in fifteen volumes, containing over sixty thousand articles in 
 fifteen hundred chapters. This vast mass of legislation would 
 seem to be sufiicient to afford fixed rules for most cases, but as 
 3 matter of fact there is much contradiction and inconsistency 
 in the ukases of the various Czars, issued at different times 
 and acting under varying impulses. To the subject these laws 
 have afforded no safe rule of conduct or protection olf prop- 
 erty rights, because of the system of administration. Trials 
 in the courts of both civil and criminal causes until 1864 were 
 secret, the evidence being taken down in writing. A system 
 of appeals from one court to another has long prevailed, but 
 this adds little to the suitor's security and causes much delay 
 and expense. Lawyers were not advocates but merely inter- 
 cessors with the judges. That best of all guarantees for the 
 integrity of judges, trials in the presence of the public and 
 of the professional lawyers, whose business it is to extract the 
 truth from parties and witnesses and apply the law to the 
 facts, was not given till the relforms of Alexander II. While 
 long steps in the right direction have been made in the refor- 
 mation of the judiciary, there is still much to be desired in 
 the way of independence and fearlessness on the bench. This 
 may be said with truth of every other land, as well as Russia. 
 There it is the Ministers whose influence is regarded as most 
 baneful, elsewhere it is mainly the rich and powerful. The 
 principal complaints urged against the Russian system are 
 for arbitrary arrests and punishments ; lack of security for the 
 citizen against the malice of police officers; cruelty and bru- 
 
RUSSIA 409 
 
 tality in the manner of executing sentences; insecurity in the 
 home against searches, seizures and arrests, and pohce inter- 
 ference with the private Hfe df the citizen. To this is added 
 a charge of general and all pervading corruption among 
 public officials, courts, police officers, governors and even min- 
 isters. Just how far this sweeping charge is justified by the 
 facts it is impossible to state, but the want of that effective 
 check, accountability to the people for whom and on whom 
 authority is exercised, renders it probably true that the charge 
 is well sustained. The Czar and the ministers seek to keep 
 informed of all that is doing through the secret police and 
 spies, but of the integrity of these they have no better guar- 
 anty than of the officials they are sent to watch. The funda- 
 mental difficulty, which no autocratic government has ever 
 permanently overcome, is that the numlber of matters to be 
 investigated is too great and the scene of action is too far 
 away for any set of men at the capital to be able to learn the 
 facts and act intelligently on them. To conduct the affairs of 
 so vast an empire safely and intelligently much must be re- 
 ferred to the people of each district, who alone can be relied 
 on to bring to account their local oppressors or incompetent 
 public servants. With every step forward in civilization an 
 accession of mental and moral force in the governing head is 
 required, which no one man or small clique of men can pos- 
 sibly furnish. The knowledge, virtue and power of the great 
 multitude must be drawn from in order to move iforward 
 safely and rapidly. The purest and best part of the admin- 
 istration of Russian affairs will generally be found to be that 
 under the immediate supervision of the Czar himself and that 
 directly managed by the people in their local concerns. 
 
 Authorities 
 
 Rambaud: History of Russia. 
 Beaulieu : The empire of the Tzars. 
 Stepniak : Russia under the Tzars. 
 Stepniak: The Russian Peasantry. 
 Encyclopaedia Britannica. 
 
CHAPTER XVII 
 
 Italy^ 
 
 Were it not for the fact that the city of Rome is included 
 within its boundaries and is now its capital, there vi^ould ap- 
 pear little connection between modern Italy and ancient Rome. 
 The boundaries of the present kingdom, though clearly marked 
 by nature, were never oif importance to Rome. Her policy 
 and system both under the republic and empire applied equally 
 to more distant lands. As a political unit Italy has no history 
 till within the last half century. After the fall of the western 
 empire came the Goths and established a kingdom over the 
 peninsula, nominally under commission from the eastern Em- 
 peror, but really with little recognition of his authority. Then 
 followed the effort of Justinian to reestablish the Byzantine 
 rule and the appointment of an exarch at Ravenna to rule as 
 his representative. Then came the invasion of the Lombards, 
 also a German race. They came not merely as an invading 
 army but as a moving nation with wives, children and all 
 their chattels, occupied the valley of the Po and moved slowly 
 down along the interior of the peninsula, leaving Venice, 
 Ravenna, Rome and other portions untouched. From their 
 advent till modern times the sovereignty over Italy was di- 
 vided. The temporal power of the popes, like that of feudal 
 lords in later times, had if or its foundation a recognized owner- 
 ship of land. By various means the Roman pontiff acquired 
 large possessions in and about Rome, over which he assumed 
 civil authority. Under Gregory I (590 to 604) these posses- 
 sions were largely increased. In 754 the Prankish king Pepin, 
 having taken up the quarrel of the Pope with the Lombards 
 and defeated them, handed over to Pope Stephen III a con- 
 
 ^ For Mediaeval events in see ch. XV. For a full account of the legisla- 
 tion of the Goths, Burgundians, Lombards and Franks see Calisse's History 
 of Italian Law, Continental Legal History Series, Vol. i. 
 
 410 
 
ITALY 411 
 
 siderable district including Ravenna and Pentapolis, '*to be 
 held and enjoyed by the pontiffs of the Apostolic See forever." 
 This was followed in 800 by the alliance of Pope Leo III 
 with Charlemagne, by which the latter received the imperial 
 crown from the former and in return recognized the spiritual 
 supremacy of the Pope throughout Christendom. The south- 
 ern portion of the peninsula did not submit to Charlemagne, 
 but recognized the ultimate sovereignty of the emperor at 
 Constantinople. After the Prankish empire fell into decay 
 there followed a period oif discord and lack of central author- 
 ity, though there was a titular king of Italy, who waged war 
 on the local nobility to enforce his authority with varying 
 success. In 961 the German emperor Otto entered Lombardy 
 and in the next year was crowned emperor by the Pope at 
 Rome. The dominion of Otto and succeeding German em- 
 perors was never fully recognized throughout Italy, and wars 
 frequently occurred in efforts to enforce their authority. Then 
 came the war of the investitures, which was a struggle for 
 actual power between the Pope and the Emperor. Following 
 this conflict, though it may not be safe to say as a result of it, 
 came the age of free cities. The feudal system was intro- 
 duced into Italy and was enforced in rural communities, but 
 the towns adopted popular systems and asserted their inde- 
 pendence. The history ai these petty states affords a most 
 valuable lesson in the subject of our study. Their develop- 
 ment was along similar lines with substantially similar results. 
 At first a comparatively few people joined together for mutual 
 aid and protection. The system of municipal government at 
 first adopted was popular in character and design to protect 
 the more humble citizens against aggression. The tyrant most 
 dreaded was usually a feudal lord, against whom the burghers 
 united. Joining for defense against the exactions of rapacious 
 nobles, they were disposed to accord justice to each other. 
 This necessarily implies consideration for the rights of the 
 humble. With superior moral principles as the basis of their 
 institutions they naturally drew strength and gained numbers 
 from among those who could escape from the dominions of 
 oppressive nobles. With Ifreedom of action accorded to each 
 
4T2 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 citizen and protection to all these little republics exhibited a 
 degree of activity and force far exceeding that to be found 
 among people ruled by petty despots, and the development of 
 industries and trade went forward at a remarkable pace. 
 Though the free cities succeeded in combining against com- 
 mon enemies at times, they soon manifested jealousies and 
 hostility toward each other. Like the ancient Greeks they 
 lacked capacity for combining for common ends, and went to 
 war instead. In their several internal organizations demo- 
 cratic systems were gradually converted into oligarchical ones 
 and these generally, perhaps universally, divided into warring 
 factions, which were only subdued by a despot, usually from 
 without the particular city. Thus it will be observed that 
 these republics began with relatively good principles and ex- 
 ceptional prosperity and ended in disaster and tyranny. The 
 question naturally forces itself on us, if the early system is 
 the better, why is it invariably followed by that which is 
 worse ? Why does the good perish and the bad take its place ? 
 The answer must be that the early system contained the 
 germs of its own destruction, and that these germs grew and 
 gained strength at the expense and ultimately to the exclusion 
 of the salutary principles which were dominant in the early 
 organization. 
 
 Everywhere it will be found that the power of a ruling 
 oligarchy has developed in connection with the theory of the 
 transmission of property by inheritance. Probably the reason 
 why the effects of laws of inheritance in developing a distinct 
 class are not readily perceived is, that estates pass from father 
 to son, one at a time, so that there is no time when there is a 
 noticeable change in the personnel of the oligarchy. Where 
 all start poor and on a substantially equal footing, difference 
 in capacity, strength, prudence and other circumstances, re- 
 sults in the accumulation by some of more property than the 
 rest. Perhaps no social or political distinction results from 
 this difference. The feeling df fellowship between the richest 
 and poorest may continue through life. But at the death of 
 the wealthy one the estate passes by inheritance to a son who 
 has done nothing to merit it. He takes it with a feeling of 
 
ITALY 413 
 
 pride and superiority over the sons of the poor. If possessed 
 of the requisite qualities the inheritance he has received adds 
 to his power to acquire wealth, and he increases his holdings. 
 His riches give him distinction and naturally mark him as a 
 public man. He is placed in authority more or less of the 
 time. At his death an increased estate passes to his heir. By 
 this time the bond of sympathy between rich and poor is 
 broken. The son, whose ancestors for two or more genera- 
 tions have enjoyed wealth and exercised power, believes him- 
 self to be of a superior class. He associates only with those 
 of similar fortune and looks with contempt on the poor. 
 Starting with an utterly /false estimate of his own deserts, he 
 regards the possession of property through a law which is 
 merely a human regulation, as due to the special grace of a 
 higher power and himself marked out as superior to the multi- 
 tude. Discarding utterly the doctrine that individual merit 
 and desert rest solely on individual conduct and effort, he 
 makes a virtue of idleness and takes the fruits of the laibors 
 of others without suspecting that justice would deny him any 
 share of that for which he returns nothing in exchange. 
 Naturally the heirs of wealth associate mainly with those of 
 their class, and by intermarriages wealth is consolidated and 
 the interests of families are combined. The history of all 
 the Italian cities shows that through exactly this process an 
 oligarchy was established, based on possessions. Then came 
 jealousies, rivalries and factions. While the poor may at 
 times raise riots when bread is scarce, the idle rich spend 
 their time in plotting to gain still greater prominence and 
 ascendency. Having plenty they covet still more and incite 
 the poor, who are dependent on them, to fight in their interests. 
 The landed aristocracy olf Italy, like those of other parts of 
 Europe in feudal times, based their rights on grants from the 
 king or emperor. His right to make such grants generally 
 had its foundation in military power and conquest. The shift- 
 ing fortunes of the rulers of different states placed it in the 
 power of some one of them at some time to regard each tract 
 of land as conquered territory to be given to his favorite fol- 
 lowers, and as to many parts there were many changes of 
 sovereignty. 
 
414 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Though the soil of Italy became a bone of contention among 
 foreign and domestic princes and for 1400 years was without 
 national unity, its people still held a commanding position in 
 many respects. The church passed from being an organiza- 
 tion to propagate religious faith and moral principles to one 
 whose main aim was power and mastery. The weapons of 
 the church were not merely interdicts and excommunications, 
 but the Popes did not hesitate to equip armies and fight bloody 
 battles. Through the theory of land titles the churches and 
 monastic societies became possessed of a large proportion of 
 all the best lands in Europe. To the revenue derived from 
 these was added a great variety of contributions from all 
 classes of people for supposed services, in the collection of 
 which the priesthood became very expert. Schemes to gather 
 money were never wanting, and the sale of indulgences and 
 the confiscations of the Inquisition show to what depths of 
 iniquity the professed heads of the Christian religion could 
 descend. Most of the people of Italy have been poor, igno- 
 rant and sorely oppressed during most of the time since the 
 fall of the western empire, yet there have always been bright 
 spots somewhere. The ancient spirit of liberty and law has 
 always lived in the breasts of some of the sons of the penin- 
 sula, and from time to time has found expression in the in- 
 stitutions of her cities. The learning and arts of the Greeks 
 and Romans have never been entirely lost. Ravenna, Venice, 
 Milan, Genoa, Naples, Florence, Pisa, Verona, Mantua, Bo- 
 logna, Parma, Pavia, Siena and scores of other cities, includ- 
 ing old Rome itself, have at times exhibited regard if or justice 
 and the blessings of peaceful industry and beneficial enter- 
 prise. Not their wealth, but their inability to make wise and 
 just disposition and distribution of it and their jealousy of 
 rivals have proved their ruin. The church lost its hbld on the 
 consciences of men when its main aims became the gathering 
 of wealth and the increase of power. Though the Italian 
 cities severally were able to accomplish brilliant results, the 
 ancient capacity for organization, which characterized Rome, 
 was lacking. Confederacies like that of the Lombard cities 
 might successfully resist a foreign aggressor for a time, but 
 
ITALY 415 
 
 no system was developed which effectually provided either for 
 continued cooperation against outside /foes or for the determi- 
 nation of controversies between the different cities and their 
 citizens arising- from conflicting interests. Faction soon be- 
 came strife, and the utterly senseless quarrels of Guelphs and 
 Ghibellines covered the streets of the cities with the blood of 
 rival parties and armed city against city and state against 
 state. Conflicting claims of Pope and Emperor to power ad- 
 ded to the turmoil and intensified the hatred of factions. Fac- 
 tional strife as usual resulted in the evolution of tyrants, from 
 whom the people hoped at least for order. Then came the age 
 of mercenary soldiers hired by petty tyrants to fight their 
 wars, of intrigue and deception, ifor which the statesmen of 
 the Italian states gained unenviable notoriety. 
 
 The fifteenth century found Italy divided into five states, 
 the kingdom of Naples, the duchy of Milan, the Popes domin- 
 ions, and the republics of Venice and Florence. The last 
 named cities held high rank in commerce and domestic indus- 
 tries. This was a period of power for the Pope and of Vene- 
 tian dominance on the sea. Then followed that struggle for 
 dominion in Italy between the kings of Austria, France and 
 Spain, with its varying combinations, always resulting in the 
 domination of foreign rulers over more or less of the country, 
 which lasted till recent times. Local dukes and princes were 
 for the most part dependents on the rulers of one or another of 
 these great kingdoms. 
 
 Italy became the field of contest between Republican France 
 and despotic Austria in 1796, and as a result of Napoleon's 
 successes temporary republics were established. Later Napo- 
 leon established his authority and ruled through his representa- 
 tives, but the congress of Vienna in 181 5 undid all his work 
 and again divided Italy into petty states. 
 
 Victor Emanuel, whose ancestors had enjoyed more or less 
 power in Savoy, Burgundy and Lombardy from the tenth 
 century, was accorded the kingdom of Sardinia, including 
 Piedmont and Genoa. Austria held Venice and Milan, the 
 Pope the states of the church, and the Bourbon prince Ferdi- 
 nand Naples and Sicily. Austrian influence dominated, and 
 
4i6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 despotism in all its odiousness returned. In 1820 revolts oc- 
 curred, which were soon suppressed by the combined forces of 
 Austria, Great Britain and Bourbon France. Trials of leaders 
 and persons obnoxious to the rulers by courts organized to 
 convict followed, and the hand of despotism put many patri- 
 ots to death as traitors. In 1830, following the uprising in 
 Paris, there were outbreaks in some of the cities, which were 
 soon suppressed. The desire for Italian unity and 'freedom 
 spread not less rapidly for the iron rule of the princes. The 
 advocates of a republic, though forced to act in secrecy, con- 
 tinued their agitation and contrived to hold meetings ostensi- 
 bly for other purposes. The scientific congress professing to 
 be devoted to scientific research was in fact a cover for re- 
 publican gatherings. On the accession of Pius IX to the 
 papacy he proclaimed a general amnesty for political offenses 
 and sided with the liberals. In 1847 constitutions were 
 granted in Rome, Piedmont and Tuscany. iVustria and Naples 
 refused to make concessions, and in 1848 a demonstration at 
 Milan by the liberals was made the occasion of the slaughter 
 of many citizens in the streets. Uprisings at Naples forced 
 the allowance of a constitution in 1848. In response to the 
 popular demand the king of Sardinia made war for the libera- 
 tion of the Austrian provinces, but without success. Opposi- 
 tion to the war by the Pope caused an uprising at Rome, 
 which resulted in the temporary establishment of a republic. 
 The Pope was resorted to power by the French in 1849. The 
 dukes of Parma, Modena and Tuscany, who had been scared 
 from their dominions, returned under Austrian protection, 
 and the old order of things was restored. In 1859 France 
 came to the aid of Sardinia, and as a result of a brief cam- 
 paign Sardinia gained Tuscany, Modena and Prama, but at the 
 price of the concession to France of Savoy and Nice. This 
 was soon followed by a revolution in the south of Italy. Un- 
 der the lead of Garibaldi Sicily was soon overrun, and cross- 
 ing to the main land Naples was taken. In 1861 this kingdom 
 voted to be annexed to that oif Sardinia, and Victor Emanuel 
 was proclaimed King of Italy. As a result of the Austro- 
 Prussian war, in which the Italians took part with the Prus- 
 
ITALY 417 
 
 sians, Venice was restored to Italy. The French revolution of 
 1870 resulted in the withdrawal of French support from the 
 Pope, and on the twentieth of September 1870 Victor Emanuel 
 entered Rome and made it his capital, the Pope retaining the 
 Vatican with its dependencies. In these recent wars for the 
 liberation of Italy the republicans have been the popular lead- 
 ers, and republican enthusiasm has given the energy which has 
 resulted in the establishment of the present limited monarchy. 
 The constitution is essentially that granted by Charles Albert. 
 The crown is hereditary in the male line of the house of Savoy. 
 Legislative power is in the king and parliament, and the king 
 on his accession is bound to take an oath in the presence of 
 both chambers, that he will obey the constitution. His style 
 is ''by God's grace and through the will of the nation King of 
 Italy" : thus recognizing the concurrence of divine and popu- 
 lar will. The executive powers of government are exercised 
 through a ministry responsible to parliament, composed of 
 nine members namely. Foreign Affairs; Interior; Public In- 
 struction; Finance; War; Marine; Grace; Justice and Wor- 
 ship ; Public Works ; and Agriculture, Industry and Commerce : 
 The Senate consists of the princes of the royal family and an 
 undefined number of persons forty years of age or over, ap- 
 pointed by the king from the archbishops, bishops, ministers, 
 high officials, admirals, generals and other persons of wealth 
 or distinction. There must be an election of members of the 
 chamber of deputies at least once in five years. All males 
 twenty-one years of age or over, who pay taxes to the amount 
 of twenty lire and can read and write, are allowed to vote. 
 There are 508 members of the chamber of deputies. In 1865 
 the whole kingdom was divided into sixty-nine provinces and 
 eight thousand five hundred and forty-five communes, but 
 many changes have been subsequently made in the arrange- 
 ment. In each province there is a prefect appointed by the 
 king and a council chosen by the same electors, which elects its 
 own president and has supervision of provincial affairs. In 
 each commune there is also a council having charge of the local 
 affairs with power of local taxation. The Italian government 
 is still essentially aristocratic, but the difficulties with which 
 
4i8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Italian statesmen have been confronted were very great. No 
 other country included so large a percentage of beggars and 
 idle poor. Brigandage and lawlessness, extreme ignorance, 
 religious bigotry and general incapacity for public affairs, 
 prevailed in many localities. Though Italian cities are still 
 seats of learning and culture and the homes of men of a very 
 high order of intelligence, morals and education, Rome, 
 Naples and other cities contain great masses of depraved men 
 and women, from whom little that is good need be hoped ifor 
 at once. 
 
 In the matter of education though the government exhibits 
 most commendable solicitude, Italy is still far behind most 
 European states. Each commune is bound by law to afford 
 primary education and attendance is made compulsory, but 
 there are still very many places where schools are not main- 
 tained for all, and many children who do not attend. There 
 are seventeen national universities and numerous special 
 schools of high order. The judicial system has at its head 
 five courts of cassation, at Rome, Turin, Florence, Naples and 
 Palermo. Below these are twenty-three courts of appeals in 
 the principal cities. The number of courts of assize varies at 
 the pleasure of the king. Trials of criminal cases are by 
 jury, and the death penalty is no longer inflicted. There are 
 one hundred and sixty-two civil and correctional tribunals, 
 and 1813 ipraetors having jurisdiction in civil causes involving 
 less than 1500 lire and also in criminal cases. It is a part of 
 their duty to effect compromises of litigation without trial. 
 There are also special judges, styled conciliatori, to aid in 
 bringing about settlements, and about one-fourth the causes 
 are said to 'be disposed of in this manner. The principles oif 
 the Roman law still afford the basis of the modern system of 
 Italy, though changed in many particulars. 
 
CHAPTER XVIII 
 
 Spain and Portugal 
 
 Of the habits and organization of the people of Spain at the 
 time it first became known to the Greeks and Phoenicians or 
 later to the Romans we know very little. They are mentioned 
 as barbarous tribes. The Phoenicians were the first to make 
 settlements and establish trading ports on the coast. Gades, 
 Tartessus and Tarraco are said to have been flourishing towns 
 as early as the seventh century B.C., Carthage, itself a Phoeni- 
 cian colony, had acquired a kind of dominion over the penin- 
 sula by the time of the first Punic war, 264 B.C., but had not 
 succeeded in establishing a settled government over the interior 
 tribes. Considerable progress was made by Hamilcar and 
 Hasdrubal in extending their rule over the peninsula prior to 
 the second Punic war, but, beyond the facts that they were 
 backed by strong armies and at the same time encouraged 
 matrimonial unions between their followers and the natives, 
 little can be told of the system by which they governed. Dur- 
 ing this war the Romans invaded Spain, and by 205 B.C. they 
 had taken the mastery of the country out of the hands of the 
 Carthaginians. The process oif planting Roman colonies and 
 introducing the Roman system met with much resistance from 
 the interior tribes, and it was not till the time of Augustus 
 that the whole peninsula to the Pyrenees became pacified. 
 The Roman system then became general, and under it Spain 
 enjoyed a marked degree of prosperity and exemption from 
 war for nearly three hundred years, though sorely oppressed 
 by the tax gatherers. 
 
 Under Augustus Spain was divided into three provinces, 
 Boetica in the southeast with Corduba for its capital, Lusi- 
 tania, corresponding to modern Portugal, of which Emerita 
 Augusta was the capital, and Tarraconensis, covering all the 
 remainder, with Tarraco for its capital. Of these Boetica, 
 
 419 
 
420 EVOLUTION OF GOVERNMENTS AMD LAWS 
 
 the most orderly and thoroughly Romanized, was a senate 
 province, and the other two were imperial provinces, of which 
 the Emperor named the governors. The whole peninsula was 
 divided into fourteen conventuSj each made up of a combi- 
 nation of communities within the district, and having a chief 
 town at which justice was administered. In the time of Ves- 
 pasian 360 towns are enumerated, including those having the 
 'full Roman franchise, those having the inferior franchise, the 
 colonia, and the tributary towns, on the inferior classes of 
 which he conferred Latin rights. Spain became one of the 
 most thoroughly Latinized of all the Roman provinces, and 
 all the characteristics of Roman civilization were developed 
 throughout the peninsula. The vine and the olive were suc- 
 cessfully planted, and agriculture flourished. The rich mines 
 were opened, and the working of metals and weaving of 
 fabrics were industriously followed. Latin became the lan- 
 ugage of the country, and among its sons the two Senecas, 
 Lucan, Florus and Martial, were types of philosophers and 
 poets of high order. In politics Spain can boast of having 
 produced a Trajan and a Hadrian, who, during ?forty of the 
 best years the Roman empire ever knew, directed its affairs. 
 The first great shock came in 256, when the Franks passed 
 the Pyrenees and spread destruction over the peninsula. Tar- 
 ragona was sacked and almost destroyed, and for twelve years 
 the rich provinces were desolated and scourged by the bar- 
 barous invaders. After this storm another era of peace and 
 prosperity followed till 409. Contemporaneous with the sack- 
 ing of Rome by Alaric, a tide of Suevi, Alani and Vandals 
 swept over the country and desolated it. About 414 a Visi- 
 gothic horde under Ataulphus and as an ally of Rome entered 
 the country. Soon afterward Ataulphus was murdered and 
 his successor Walia made a treaty with the Emperor Honorius, 
 by which he nominally acknowledged the imperial sovereignty, 
 and thereafter proceeded to subdue the Suevi, Alani and Van- 
 dals. Although he was able to extend his authority over most 
 of the peninsula, he was not able to thoroughly subdue these 
 tribes, and for many years there was warfare between the 
 Romanized Goths and the German tribes. About 429 the 
 
SPAIN AND PORTUGAL 421 
 
 Vandals, led by their king Genseric, passed into Africa and 
 established their dominion there. Under Euric, 466 to 485, 
 the Gothic state was extended over a large part of Gaul, and 
 the seat of government established at Bordeaux. Euric was a 
 legislator as well as a warrior, and he caused to be collected 
 and embodied into a written code the ''Customs af the Goths." 
 His successor Alaric II caused the work to be revised and en- 
 larged by civil lawyers, incorporating many of the principles 
 of Roman civil and ecclesiastical law. Roman sovereignty 
 gradually gave way even in name to the actual rule of the 
 Goths. The Gothic dominion soon yielded north of the Pyre- 
 nees to that of the Franks, but continued in Spain with many 
 wars and frequent domestic upheavals till the advent of the 
 Saracens in 711. Under the Goths the people were ruled by 
 an elective monarch and an hereditary aristocracy, represent- 
 ing the temporal power, and by the church, which soon gained 
 a predominant influence in the state. Bigotry, persecution and 
 the inquisition, exhibited their barbarities, and by their side 
 the Christian doctrine of the equality of all men before the 
 law found place in their code. The barbarisms of valuing 
 men's lives according to rank, of judicial combat and trial by 
 ordeal, were unknown. The succession to the Gothic throne 
 was often contested, and many occupants of it if ell by the 
 hands of assassins. Here as elsewhere the dangers of wearing 
 a crown failed to deter men from seeking the coveted prize. 
 The Goths were Arians, though the major part of the Spanish 
 population adhered to the orthodox faith. In the latter part 
 of the sixth century King Ricared adopted the Catholic faith 
 and proceeded vigorously and successfully with the conversion 
 of his subjects. From that time forth Spain became the most 
 reliable of Catholic states. Religious zeal, whetted possibly 
 by the known wealth of the Jews, who dwelt in Spain in great 
 numbers, caused their cruel and bloody persecution and a 
 decree (for the expulsion of the last of them from the country 
 at the time when the Mohammedan power was spreading over 
 northern Africa. 
 
 The Jews invited the Saracens to invade Spain, but it can 
 hardly be said that their encouragement was the cause of the 
 
422 EVOLUTION OF GOVERNMENTS AN!D LAWS 
 
 invasion. In 711 Tarik with 5,000 men landed at Gibraltar, 
 This force was inadequate to the task before it, and Tarik 
 wisely awaited reinforcements before hazarding a decisive 
 battle. Having received large accessions to his force both 
 from Africa and from Disaffected subjects of Spain, he 
 marched out and destroyed the army of King Roderic in a 
 long and hard fought battle, in which the tide was turned by 
 the treachery of a part of Roderic's army. Tarik at once took 
 advantage of his success and quickly overran the country. A 
 state which it had taken the Romans two centuries to subdue 
 was overrun and reduced by the Saracens in a few months. 
 The rapid success of the Mohammedan armies in Spain, as 
 elsewhere in the early days of religious zeal, was largely due 
 to the superior treatment by them of conquered people. The 
 alternative of the "sword, the tribute or the Koran" offered 
 to those capable of adapting their beliefs to their material 
 interests an easy escape from all oppression, and even when the 
 tribute was imposed, it was a more moderate burden than 
 many of the Christian rulers placed on their subjects. An 
 example of this is given in the terms of the capitulation of 
 Theodomir to Abdelazis after a stubborn resistance. 
 
 'Tn the name of the most merciful God, Abdelazis makes 
 peace on these conditions, that Theodomir, shall not be dis- 
 turbed in his principality, nor any injury be offered to the 
 life or property, the wives and children the religion and tem- 
 ples of the Christians . . . that he shall not assist nor enter- 
 tain the enemies of the Caliph, but shall faithfully communicate 
 his knowledge of their hostile designs, that himself and each 
 of the Gothic nc^bles shall annually pay one piece of gold, four 
 measures of wheat, as many of barley, with a certain propor- 
 tion of honey, oil and vinegar, and that each of their vassals 
 shall be taxed at one moiety of said imposition." This was 
 dated in the ninety-fourth year of the Hegira. 
 
 Not content with the possession of Spain, the Saracens 
 passed the Pyrenees and overran the southern part of Gaul, 
 till their crusfhing defeat near Tours in 732 by the Franks 
 under Charles Martel put a definite end to their encroach- 
 ments. By 759 they abandoned all possessions beyond the 
 Pyrenees. 
 
SPAIN AND PORTUGAL 423 
 
 The struggle for the mastery of the Mohammedan world 
 carried on in the east resulted in the overthrow of the Omay- 
 ads and the destruction of the members of the royal house- 
 hold, except Abd-al-Rahman, who effected his escape to Spain, 
 where he was warmly welcomed and after a struggle with the 
 Abbasid adherents succeeded in establishing his authority. 
 Though he and his immediate successors assumed the modest 
 title of emir, all connection with the Caliphate was in fact 
 severed and the independence of Spain was maintained. Un- 
 der Abd-al-Rahman a struggle for mastery against opposing 
 factions aided by the then overshadowing power oif the Franks 
 resulted in the firm establishment of his power and a long era 
 of peace, during which the schools of Cordova took high 
 rank, and the study of mathematics, astronomy, medicine and 
 kindred sciences was carried to the highest stage anywhere 
 attained at that time. His descendants, who succeeded him 
 in authority, left notable monuments of the wealth produced 
 by the skill and industry of the people. The elegances of 
 eastern civilization and the public utilities of roads, bridges 
 and aqueducts, so characteristic of the Roman provinces, were 
 exhibited in city and country in forms which have excited the 
 wonder and admiration of later generations. To clearly com- 
 prehend what is sometimes called Moorish civilization it must 
 be borne in mind that the Mohammedans merely imposed their 
 own authority and civilization on that which they found in 
 Spain on their arrival. The country was not cleared of its 
 ancient inhabitants, but the descendants of Phoenicians, an- 
 cient tribes, Greeks, Romans and Germanic tribes still in- 
 habited it and constituted a great majority of the population. 
 In agriculture the Roman system prevailed. In trade Jews 
 as well as Romans played an important part. In the arts and 
 sciences the rulers wisely encouraged men of skill and learning 
 from all parts of the world to teach as well as to labor among 
 their people. The wealth of Spain was not alone in gold, 
 silver and the works of laborers' hands, but in knowledge as 
 well, and Cordova could boast of its library of 600,000 vol- 
 umes. The prosperity of Spain under the Omayad dynasty 
 illustrates the advantages of combining different civilizations 
 
424 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 in a proper spirit. The Arabs and their eastern followers 
 brought with them the arts and acquirements of the east, 
 which were added to the Roman civilization which preceded 
 them. Each profited from the peculiar knowledge of the 
 other, and each was stimulated to better effort in useful call- 
 ings. But the Omayads also brought with them the seeds oif 
 the destruction of their empire. Religious bigotry, polygamy, 
 the seclusion of women, and a despotic theory of government, 
 worked out their natural results. How false the life of a 
 typical oriental potentate is was pathetically expressed by 
 Abd-al-Rahman III who ruled from 912 to 961, and under 
 whom the height of oriental magnificence was maintained, in 
 a memorial in which he said, "I have now reigned above fifty 
 years in victory or peace, beloved by my subjects, dreaded by 
 my enemies, and respected by my allies. Riches and honors, 
 power and pleasure have awaited on my call, nor does any 
 earthly blessing appear to have been wanting to my felicity. 
 In this situation I have diligently numbered the days of pure 
 and genuine happiness which have fallen to my lot; they 
 amount to fourteen. O man! place not thy confidence in this 
 present world." Like most others in similar station he failed 
 to comprehend his own vices, and that he daily transgressed 
 the laws of healthy life. In his multitude of secluded ignorant 
 women he lacked a worthy wife. In the abundance of the 
 fruits of the labors of others with which his wants were sup- 
 plied he lost the healthy relish which comes from useful effort. 
 In the exercise of despotic power over the lives and for- 
 tunes of others he was not disciplined by the salutary resis- 
 tance which the freely expressed judgments of others of equal 
 capacity afford. Most of all, in his exalted station he lacked 
 the sympathy and (fellowship of others. Of the brotherhood 
 of man he had no comprehension, and without it he could not 
 realize the fatherhood of God. 
 
 The Mohammedans, having extended their dominion over 
 all the rich provinces of Spain, allowed a remnant of the 
 Goths to take refuge in the mountainous district of the north- 
 west. There Pelayo and a few hardy followers preserved 
 their independence. Christians who preferred the hard life 
 
SPAIN AND PORTUGAL 425 
 
 of the mountains to submission to Moslem rule in more genial 
 districts, joined them, and thus the little state grew. Alfonso, 
 the grandson of Pelayo, extended his possessions over Galicia, 
 and his son fixed his capital at Oviedo. Though in name 
 Christians, the Visigoths were still warriors whose principal 
 employment was fighting the Mohammedans and each other. 
 Succession to the throne of the petty state was oiften the oc- 
 casion of internal discord, and the record of assassinations 
 and fratricidal wars for the throne is similar to that of other 
 kingdoms of that time. By the end of the eighth century the 
 kingdom of Oviedo was fairly well established and had de- 
 feated the Moslems in several great battles. 
 
 In 801 Charlemagne extended his power into the northeast 
 of Spain and established a mark there, over which the Count 
 of Barcelona ruled as representative of the Prankish Emperor. 
 On the breaking up of the Empire the district olf Catalonia 
 was subject to frequent transfers of sovereignty, being some- 
 times under a local ruler and at others subject to Gaulic kings. 
 About 900 Sancho founded the kingdom of Navarre, in the 
 district in which the ancient Basques had taken refuge from 
 the invaders, and into which later the Suevi withdrew before 
 the Visigoths. The possessions of the kings of Oviedo were 
 extended into Leon and Castile, and Sancho the great of 
 Navarre extended his rule over Aragon. The German custom 
 of dividing kingdoms as a patrimony among the sons pre- 
 vailed, and the number of separate states depended on the 
 number of sons ai the kings and the success of one in taking 
 the share of another by fraud or force. Thus the states of 
 Leon, Castile and Aragon were formed. The mixed popula- 
 tion of that part of Spain still held by the Arabs and the con- 
 flicting religious beliefs and priestly leaderships were a source 
 of never ending trouble to the rulers. The ninth century was 
 a period of disorder, revolts and divided authority throughout 
 the Mohammedan dominions, but much the same conditions 
 prevailed among the Christians, and they neglected the op- 
 portunities which the times afforded for the expulsion of the 
 Mohammedans. Abd-al-Rahman III ascended the throne of 
 Cordova in 912 and assumed the title of caliph. Though he 
 
426 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 did not succeed in establishing his sovereignty over the Chris- 
 tian districts in the northern portion o'f the peninsula, such 
 was his success in encouraging trade, agriculture and manu- 
 factures, that the country enjoyed unexampled prosperity, 
 and his revenues were sufficient to enable him to maintain an 
 efficient army and navy and to annually devote vast sums to 
 the construction of public works and buildings. Of all the 
 rulers of his time he expended most of the money taken from 
 his subjects by taxations for their education and for aque- 
 ducts, bridges, roads and other objects really beneficial to 
 them. The century following the accession of Abd-al-Rah- 
 man III to the throne was the golden age of the Mohamme- 
 dan dominion. In the early part of the eleventh century the 
 state fell into disorder and civil war, and in 1031 by the 
 abdiction of Hisham III the Omayad dynasty, which had 
 ruled for three hundred years, came to an end ; all central 
 authority ceased and the state was split into disorderly ifrag- 
 ments. It is noteworthy that under these conditions the larg- 
 est and most enlightened cities, the great seats of learning 
 and the arts, Cordova and Seville, were organized as republics. 
 Following the fall of the Omayad dynasty there was a 
 period of great discord and disorder in the Moslem districts, 
 and the Christians made a substantial acquisition of territory. 
 Among Mohammedans and Christians alike most of the civil 
 strife and bloodshed resulted from the ambitions of the no- 
 bility and the descendants of princes. The thirst for power 
 was their dominant passion; wars against those nearest in 
 blood were common, and treachery and assassination of broth- 
 ers and other near relatives not infrequent. Those whom the 
 people followed led them to destruction. Rulers were rarely 
 actuated by any motive of duty or public service, but usually 
 the sole object oif each was to aggrandize himself. The strug- 
 gle between the followers of the two religions was not less 
 mercenary, but had the added force of the desire for priestly 
 dominion on either side, and the warriors were stimulated to 
 risk their lives under promise of a sure reward in a life to 
 come, each side equally confident that his God was the true 
 God and that he fought against infidelity and falsehood. 
 
SPAIN AXD PORTUGAL 427 
 
 In the time of Gregory VII the Christians of Spain, who 
 had been somewhat isolated, adopted the ritual of the Roman 
 church and thenceforth became the most servile of its fol- 
 lowers. The successes oif the Christians induced the emir 
 of Seville, then the most powerful of the Moslem princes, to 
 call to his aid Yussef, the king of the Almoravids, who ruled 
 over a vast African empire with Morocco as his capital. In 
 response the king came with a strong army, and Alfonso VI 
 of Castile, aided by the King of Aragon and Count of Barce- 
 lona, was defeated in a great battle at Zallaka in 1086. Hav- 
 ing been recalled to Africa by the death of his son, Yussef 
 again crossed into Spain in 1090, and by the end of the century 
 all the ]\Iohammedan districts oif Spain were united under the 
 rulership, not of a Spanish prince, but of the King of Mo- 
 rocco. Alfonso VI of Castile had extended his power to such 
 extent as to assume the title of emperor of Spain, but before 
 his death the Moorish power curtailed his dominions. There- 
 after his ambitious daughter Urraca warred with her husband 
 Alfonso of Aragon, and as the result Alfonso ruled Aragon 
 and Navarre and her son by her first husband, as Alphonso 
 VII, ruled Castile, Leon and Galicia. In this age of crusades 
 Spain also had its crusading orders, formed to fight the infi- 
 dels, the Calatrava ^founded in 11 58, that of St. James Compo- 
 stella in 11 75 and of Alcantra in 11 76. In the kingdom of 
 Portugal, which grew rapidly in the twelfth century, there 
 was the order of the Evora. In Africa Abd-al Mu min, as 
 leader of the sect of Almohades, overthrew the empire of the 
 Almoravids and then crossed into Spain. The Spanish Almo- 
 ravids called to their aid the Christian kings of Castile and 
 Aragon, but their combined forces were unable to cope with 
 the victorious Moors, and a second Moorish rulership was 
 imposed on the fairest part of Spain. The feuds and dissen- 
 sions in the Christian states gave the Moors a respite from 
 danger ifrom that quarter, but a revolt of the Almoravids in 
 1 199 was followed by five years of civil strife, and soon after- 
 wards a confederation of the kings of Castile, Aragon, Leon, 
 Navarre and Portugal, was effected, mainly through the in- 
 fluence of the Pope and clergy, and on July 16, 12 12 in the 
 
428 EVOLUTION OF GOVERNMENTS AN© LAWS 
 
 great battle of Las Navos de Tolosa the Moors sustained a 
 defeat from which they never recovered. The old Arab 
 leaders gave way in the district still held by the Moslems to 
 the Moorish element, which thereafter dominated. In 1230 
 Castile and Leon were united under Ferdinand III, who ex- 
 tended his possessions at the expense of the Moslems, captur- 
 ing Cordova and Seville, their chief cities, and others oif less 
 importance including Cadiz. During the same period the 
 king of Aragon extended his dominions over the Moorish 
 possessions in the Balearic Islands, Valencia and Murcia, so 
 that by 1266 the Moors were confined to Granada. By this 
 time Portugal had acquired substantially the same territory 
 it now possesses. Though reduced within such narrow terri- 
 tories, the Moorish state, which had been reduced to a homo- 
 geneous population, continued without material change in its 
 dimensions for more than two centuries. Its history is one 
 of struggles of aspirants for power with each other, of dis- 
 sension and civil war, with occasional collisions with the Chris- 
 tians, as well as alliances at times. 
 
 The organization of society in the states of Castile and 
 Aragon, which had now taken most prominent place in Spain, 
 was similar to that of many other states in which Germanic 
 elements were dominant, though modified somewhat by re- 
 ligious and local influences. The power of the King of Cas- 
 tile was not absolute. The cortes, which originally was a 
 meeting of the great nobles and royal household, in 11 62 
 admitted to membership deputies from the cities, who at first 
 were elected by vote oif all free citizens and afterward by the 
 city magistrates. The national assembly of the cortes was 
 made up of three estates, the clergy, nobles and representatives 
 of the towns, who deliberated separately at times and as one 
 body at others. The two first named orders were exempt from 
 taxation. The feudal system took root in Christian Spain. 
 The nobles exercised judicial powers in their domains, and the 
 bishops and higher clergy decided causes within their juris- 
 diction in accordance with the laws of the church. The nobles 
 and towns exercised the right of forming confederations for 
 the protection of their rights by force, and the actual admin- 
 
SPAIN AND PORTUGAL 429 
 
 istration of government was mainly local under the clergy, 
 nobles and town authorities. Grants of taxes were made by 
 the cortes, and in these matters at times only the third order, 
 who represented taxpayers, were allowed to participate. 
 
 The constitution of Aragon was still more restrictive df 
 the kingly power. The cortes consisted of four estates, the 
 great nobles, the equestrian order, the clergy and the represen- 
 tatives of the towns. The concurrence of all was essential to 
 the passage of a law, and they exercised the right of super- 
 vision over the administration of justice and the expenditures 
 of public moneys. The cortes assembled once in two years, 
 and the king had no power to dissolve it. A most important 
 officer was the justisa^ appointed by the king from the eques- 
 trian order. He could be removed only by the cortes, to whom 
 alone he was accountable for his official conduct. His person 
 was sacred, and he was the supreme interpreter of the laws. 
 He could call the king's ministers to account and even dis- 
 miss them from office for misconduct. Through him the oath 
 of allegiance was expressed on behalf of the barons in the 
 following form: "We who are each of us as good as you, 
 and who are altogether more powerful than you, promise 
 obedience to your government if you maintain our rights and 
 liberties, but not otherwise." The cortes was not the law-mak- 
 ing power but the supreme court of justice, presided over by 
 the jiistiza. The office gained dignity and power from the 
 appointment of men of exceptional character and ability, who 
 exercised a marked influence on the affairs of the state. 
 Though the kingdom of Aragon by 12 13 included Catalonia 
 and Valencia, each of these provinces had its separate cortes 
 and was governed in accordance with its own laws, to which 
 the people jealously adhered. The great nobles, in accordance 
 with the feudal customs of the times, waged private wars and 
 demanded their shares df all conquests made by the state. 
 The constitution of the cortes in Valencia and Catalonia was 
 essentially the same as in Castile, having but three orders. 
 
 Alfonso X of Castile, who came to the throne in 1252, 
 caused a code of laws to be prepared, based on the civil and 
 canon laws, called the Siete Partidas, but the adoption of it 
 
430 EVOLUTIOX OF GOVERNMENTS AND LAWS 
 
 by the cortes was not effected till 1348, long after his death. 
 The history of Castile from the time of Alfonso X to the 
 union with Aragon is similar in its leading particulars to that 
 of other European states where the feudal system prevailed. 
 The kings and great nobles, instead of preserving the general 
 peace by their wisdom and moderation, were turbulent, con- 
 tentious and often cruel. Civil war often followed the demise 
 of the king between factions supporting opposing claimants 
 to the crown. When the crown was not an available pretext 
 for war, the jealousies and rivalries of the nobles afforded 
 other pretexts for bloody strife. Neighboring kingdoms also 
 came in for their shares of the horrors of war, and during 
 this period the Christian kings caused their subjects to war 
 with each other quite as much as with the followers of the 
 Prophet. In Spain as elsewhere in Europe the great nobles 
 imposed a check on the power of the kings, which at times 
 was reduced to little more than a shadow. The towns also 
 preserved some measure of independence, but by taking the 
 choice of delegates to the cortes from the mass of citizens 
 and vesting it in the magistrates popular influence was greatly 
 restricted and the opportunity for corrupt influences corre- 
 spondingly increased. Throughout the country districts of 
 Castile the rule of the nobles was despotic and the condition 
 of the common people that of serfs. 
 
 In Aragon there was far more of genuine restriction on 
 arbitrary power. The king was even less potent than in Cas- 
 tile, and the justi:::a and cortes gave the townsmen and common 
 people some measure of protection. In Catalonia there was 
 much genuine republican spirit. Still in Aragon the nobles 
 through the theory of ownership of the land retained con- 
 trol of the face of the earth and dictated to the multitude the 
 terms on which they might live. Aragon had its written 
 fundamental law, in 1283, called the "General Privilege," 
 which placed limitations on the powers oif the king and con- 
 tained substantial provisions to secure the citizens against 
 arbitrary power, but it was far from an effectual protection 
 for the common people. In 1287 Alfonso III signed what is 
 termed the 'Triviles^e of Union," which allowed the subjects 
 
SPAIN AXD PORTUGAL 431 
 
 to take up arms against the king if he attempted to infringe 
 their Hberties. Pedro IV revoked it in 1348 after putting 
 down a serious revoh. While doing this he swore to respect 
 the personal and political liberties of his subjects. Through 
 the claims of its rulers to the throne of Sicily, Naples and 
 Sardinia, Aragon became involved in foreign politics and 
 wars, and while the King of Aragon for a time ruled also 
 over portions of Italy, no close union df the detached terri- 
 tories was effected, but each retained its customs and laws. 
 In the thirteenth and fourteenth centuries the kingdom of 
 Navarre was more closely connected with France than with 
 "Spain. Through various alliances of its reigning house with 
 other rulers there were frequent changes in its rulership and 
 territorial connections. In the fourteenth century by the mar- 
 riage of John of Gaunt and Edmund of York to daughters of 
 Pedro, King of Castile, claims to the Castilian throne arose, 
 which brought English troops into the peninsula, and alli- 
 ances with the French king shifted according to the prevail- 
 ing influences of the time. The dreary details of intrigues and 
 wars in the interest of contending princes are so similar in 
 their essence that it seems altogether idle to ifollow them. 
 While a victorious leader may gain a name and be called a 
 hero, the net result of the strife is always misery, woe and 
 death to the multitude. 
 
 The kingdom of Portugal developed from the fief of Terra 
 Portucalensis, which Alfonso VI of Castile conferred on 
 Henry of Burgundy in 1094. Its independence dates from 
 the reign of Alfonso Henriques, renowned as a crusader 
 against the Moslems. He reigned from 1 128 to 11 85. In his 
 wars he received some aid by Templars and crusaders from 
 Germany, Flanders and England. Alifonso II (1211 to 1223) 
 summoned the first Portuguese parliament, which was con- 
 stituted of high church officials and nobles. The feudal sys- 
 tem prevailed there at that time, and the church had extended 
 its possessions to such extent as to induce Alfonso to propose 
 a statute of mortmain, prohibiting further acquisition of 
 church lands. Under Alfonso III the boundaries of Portugal 
 were extended to include substantially its present territory. 
 
432 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and in 1254 he summoned a cortes, in which representatives 
 of the cities were admitted to sit with the clergy and nobles. 
 While Alfonso received from the city representatives the aid 
 he anticipated in his contests with the clergy, on the other 
 hand they denounced his tampering with the coinage and 
 compelled recognition of their control over the levy of taxes. 
 John I who came to the throne by the choice of the cortes, 
 concluded an alliance with England, and in 1385 John of 
 Gaunt aided him in his war with Castile with an army df 
 5,000 Englishmen. His reign witnessed the increase of the 
 possessions and power of the great nobles by grants of lands. 
 In the fifteenth century the Portuguese took the lead in nauti- 
 cal explorations and extended their voyages along the coast 
 of Africa. 
 
 In 1485 Bartholomew Dias rounded the Cape of Good 
 Hope, and in 1497 Vasco Di Gama reached India by way of 
 the cape. The Portuguese promptly took advantage of these 
 discoveries, and in 1 505 Almeida was sent as viceroy to India. 
 In 1520 Magellan, a Portuguese in the Spanish service, sailed 
 through the straits at the extremity of South America into 
 the Pacific Ocean. The foreign trade, which developed in 
 consequence of these discoveries, brought rapid increase of 
 wealth, but it also brought the poison of African slavery. 
 The lands, especially in the south, were cultivated by black 
 slaves. Though John II in 1484 had broken the power df the 
 feudal lords by the drastic remedy of putting about eighty of 
 the leading ones to death, the evils of a state made up of a 
 few masters and many slaves rapidly developed along with 
 the increased wealth. Bigotry was not confined to Spain, 
 and in 1536 the Inquisition was introduced into Portugal 
 with the same cruel and disasterous results as in Spain. The 
 material advantages acquired by the discoveries of her sea- 
 men were not preserved to the nation. Corruption in of^cial 
 stations, especially in the colonial governments, and emigra- 
 tion caused by bigotry and oppression at home weakened the 
 foundations of the state. In 1578 Sebastian invaded Africa 
 and sustained a crushing defeat. Two years later Portugal 
 was forced to submit to the dominion of Philip II of Spain. 
 
SPAIN AND PORTUGAL 433 
 
 Ferdinand and Isabella were married in 1469. On the death 
 of Henry IV of Castile in 1474, each claimed the throne, but 
 the succession was ultimately settled on Isabella. Henry's 
 daughter Joanna was also a claimant, supported in her pre- 
 tensions by a faction of the nobles and also by her uncle 
 Alfonso V of Portugal. Her adherents were defeated in bat- 
 tle. On Jan. 20, 1479, John II, of Aragon died, leaving to his 
 son Ferdinand the succession to the thrones of Aragon, Sicily 
 and Sardinia. Though Ferdinand and Isabella thus came into 
 possession of the kingly office of all these countries, they were 
 not thereby consolidated into one kingdom, but for the time 
 each retained its separate system of laws. Navarre, which 
 came to John II by his first wife, passed to their daughter 
 Eleanor. Ferdinand and Isabella set about increasing their 
 own power and restricting the privileges of the nobility. In 
 1476 the Santa Hermandad was organized as a popular con- 
 federation throughout the whole oif Castile for police and 
 judicial purposes. Its members were of the burgher class and 
 its affairs were managed by local courts, from which an ap- 
 peal was allowed to the Supreme Court, and by a junta of 
 deputies from all cities convened annually. A body of 2,000 
 cavalry was placed at the disposal of the brotherhood, and a 
 special code of laws for its use was compiled in 1485. The 
 jurisdiction assumed by the Brotherhood curtailed by so much 
 that of the nobles, and afforded something like protection 
 against their tyranny and injustice. The administration of 
 justice took on some of the characteristics of a regular sys- 
 tem, and educated lawyers were appointed to the chief judicial 
 pwDsitions. To further strengthen the powers oif the sover- 
 eigns they secured the grandmasterships of the powerful mili- 
 tary orders of St. lago, Calatrava and Alcantara, which in in- 
 dependent hands might prove dangerous. Lavish grants of 
 crown lands were revoked and the domains reclaimed. Under 
 the prudent administration of Isabella, to whom the credit 
 of administrative reforms is given, the revenues were increased 
 from 885,000 reals in 1474 to 26,283,334 in 1504 without the 
 imposition of any new taxes, but the latter sum was received 
 after the acquisition of Granada and includes its taxes. In his 
 
434 EVOLUTION OF GOVERXMEXTS AXD LAWS 
 
 appointments to official positions Ferdinand chose men attached 
 to his interests, without regard to their rank, and built up a 
 personal following on which he could rely. Few sovereigns 
 have exercised so profound an influence on the institutions 
 and characteristics of a state as Ferdinand and Isabella. Be- 
 ing both most devout Catholics, they set about removing the 
 last vestige oif Moslem power from the peninsula, and after 
 a long and bloody war on Jan. 2, 1492, they entered Granada, 
 the last stronghold of the Moors, in triumph. The religious 
 zeal of Ferdinand accorded with the prevailing sentiments of 
 the great mass of his Christian subjects, and by a skillful use 
 of the religio-military orders and priestly influences he at- 
 tached to his interests sufficient force to enable him to over- 
 awe and master the proud Castilian nobility. It accorded with 
 his general policy as well as his religious bigotry to introduce 
 the institution of the Inquisition into Spain. In 1478, on the 
 application of the king and queen, Pope Sextus IV issued his 
 bull for the establishment of the Holy Office, as it was termed, 
 in Spain, and granting it the right to appoint the inquisitors. 
 In 1480 the first were named from among the Dominicans, 
 and early in 1481 they began their work at Seville. The 
 ostensible puqxjse of the Holy Office was to inquire into and 
 correct errors of religious faith, and thereby preserve and 
 protect in its purity the Christian religion. The sa)fety of 
 human souls according to the doctrines of the church de- 
 pended, not on conduct or morals, but on belief in the estab- 
 lished creed and observance of church forms and requirements. 
 Disbelief of its doctrines or noncompliance with its ceremonies 
 was magnified into crime and given the direful name of heresy. 
 To discover and suppress heresy was the mission of the Holy 
 Office. In Spain th^ Christians had to deal with Mohamme- 
 dans and Jews, stifif necked and perverse unbelievers, on whom 
 it was deemed useless to use argument or persuasion, for they 
 had deliberately chosen to follow false doctrines. Many of 
 them were also guilty of another offense, which may have in- 
 cited the activity of the inquisitors quite as much as errors oif 
 faith, namely that of possessing wealth. It was intolerable 
 that heretics should live in peace and enjoy wealth while the 
 
SPAIN AND PORTUGAL 435 
 
 king- and clergy wanted money. The new tribunal commenced 
 its work vigorously, and in the first year 298 victims were 
 Ijurned at Seville alone and their estates confiscated. In ans- 
 wer to protests from citizens who did not approve of this 
 barbarity, the Pope ordered a more mild administration of the 
 Holy Office and named the archbishop of Seville as sole judge 
 of appeals in matters of faith. In 1483 Thomas of Torquem- 
 ada was named by the Pope inquisitor general for Castile and 
 Leon, and he proceeded to organize his dread tribunals. He 
 was the president of the court with two lawyers as assessors 
 and three royal counsellors. This force being found still in- 
 sufficient ifor the work, a central court was organized styled 
 the Conscjo dc la Stiprema, comjx)sed of the inquisitor gen- 
 eral, six apostolical counsellors, a fiscal procuratbr, three 
 secretaries, an alguadl (chief of police), a treasurer, four 
 servants, two informers, and such other agents as might be 
 needed from time to time. Under this central tribunal there 
 were four local ones. All the officials connected with the Holy 
 Office were paid out of the confiscated estates and were there- 
 fore directly interested in finding heretics of wealth and con- 
 victing them. The Inquisition proceeded to formulate its 
 rules, which were embodied in thirty-nine articles and defined 
 the procedure of the Holy Office. These provided for sum- 
 moning heretics to come forward and confess, fixed the pen- 
 alties to be borne by the penitent and submissive, regulated the 
 treatment of penitents in prisons, the torture to extort con- 
 fessions and other procedure of trials, and authorized the con- 
 demnation of dead heretics whose estates were coveted. The 
 Inquisition was nowhere approved by the people and occa- 
 sioned a revolt in Aragon, but the combined power of the 
 church, the religious orders and the crown maintained it. The 
 procedure was provided with ample forms to fill the require- 
 ments of a judicial system, but none of them were designed 
 to afford protection to an innocent person falsely accused. 
 When complaint was made, a preliminary examination was 
 held and the result reported to the tribunal. If the case was 
 regarded as one calling for action, the informers and wit- 
 nesses were reexamined and the evidence submitted to "the 
 
436 EVOLUTIOX OF GOVERNMENTS AND LAWS 
 
 Qualifiers of the Holy Office," a body of priests. These hav- 
 ing given their opinion against the accused, as was their cus- 
 tom, he was removed to the secret prison of the Office and 
 cut off from all communication with the outside world. 
 Then if olio wed three "first audiences," in which the officials 
 did their best to extort a confession. If unsuccessful in this 
 the fiscal in charge demanded torture to extort a confession. 
 After torture, for which the most fiendish devices were used, 
 the victim was taken before the court, where the charges were 
 for the first time read to him, and he was asked if he desired 
 to make a defense. If he answered that he did, he was al- 
 lowed to choose a lawyer from a list furnished by the court,, 
 all of whom could be relied on to offer no obstacle to a con- 
 viction. After all the evidence was in the Qualifiers were 
 again called on for their opinion on the whole case. This 
 being adverse to the accused, he was sentenced with privilege 
 of appeal to the Supreme tribunal or to the Pope. These ap- 
 peals afforded a chance for the friends of the accused to 
 contribute their means to the papal treasury. If, as sometimes 
 happened, the victim was at last acquitted, he might retire to 
 his home, broken in body and ruined in fortune with no re- 
 dress against his accusers. If condemned, he was brought 
 before the court, regaled with the solemnity of the Auto-da-fe 
 and inlformed of his fate. He might then become reconciled 
 and as a penitent submit to the severe penalties prescribed, or, 
 refusing to do so, he was ''relaxed," that is turned over to the 
 secular authorities to be burned ; for the church shed no blood ! 
 Later under Ximenes the institution was further extended 
 by the organization of ten tribunals, at Seville, Jean, Toledo, 
 Estramadura, Murcia, Valladolid, Majorica, Pampeluna, Sar- 
 dinia and Sicily, and under Charles V and Philip II it was 
 extended and performed its horrible work on the Protestants 
 of the Netherlands, of whom great numbers were tortured and 
 burned. The institution was introduced into Portugal in 1536 
 on the solicitation of John III, where it performed its deadly 
 office with great vigor. Its blighting influences were mani- 
 fested by a marked decrease of the population of Spain and 
 Portugal and by the crushed spirit of the people. Literature 
 
SPAIN AND PORTUGAL 437 
 
 could not thrive where almost any publication was liable to be 
 found by the Qualifiers to contain heretical expressions. The 
 figures given of the numbers who in Spain became victims oif 
 the Holy Ofiice prior to 1810 are sufficiently appalhng, 31,912 
 burnt alive, 291,450 imprisoned as penitents and 17,659 burned 
 in effigy and their estates confiscated. But this by no means 
 indicates the full measure of misery and evil caused by this 
 awful wickedness. Great numbers left their homes and per- 
 ished in foreign lands to escape its hands, and all freedom of 
 expression and intellectual progress were blasted. Though 
 acting with close observance of forms and executing what 
 were regarded as written laws, sanctioned by that authority 
 most highly venerated, the Roman Church, in their actual 
 workings these tribunals utterly disregarded all law, human 
 and divine, and trials before them were conducted by methods 
 that could not fail of the most diabolical results. The accusers 
 were the judges and profited by every conviction. The pro- 
 ceedings were secret, and the accused denied all tests by which 
 the falsity of the evidence against him could be shown, or by 
 which ifacts favorable to his innocence might be established. 
 Confinement and torture were inflicted on those accused, 
 whether guilty or innocent. But beneath all this the whole 
 system was utterly wanting in any moral basis. The alleged 
 crime of heresy is a myth. The opinions on religious subjects 
 of one mind are as sacred as those of another. 
 
 Though utterly indefensible in its purposes and methods 
 and baneful in its results, the Inquisition was still a logical 
 outgrowth of the prevailing spirit of the times. During more 
 than seven centuries difference of religious faith had fur- 
 nished the pretext for bloody wars between Christians and 
 Mohammedans, in which many battles were fought in either 
 of which more men were killed for religion's sake than all 
 whose lives were taken by the Inquisition. Though the moral 
 sense of the Christian world o-f today revolts at the cruelties 
 and rank injustice of the Inquisition, it still glories in the deeds 
 of the Cid and the many renowned kings of Spain and Portu- 
 gal who led their people to death in wars against the infidels, 
 and draws deep satisfaction from accounts of the wholesale 
 
4.38 EVOLUTION OF GOVERNMENTS ANiD LAWS 
 
 slaughter of the more pohshed and industrious followers of 
 the Prophet. To establish a tribunal to punish those who 
 after the expulsion of the Moors still persisted in denying the 
 creed of the victors was merely carrying the purpose of rid- 
 ding Spain of unbelievers to its logical end. What use to 
 drive out the Moslems by iforce of arms if unbelievers might 
 still retain their wealth and dwell in security in Spain? Why 
 kill heretics in battle if they were entitled to live in peace after 
 their armies were destroyed ? The savagery of war still gains 
 the approval and even the admiration of most of mankind, 
 though it has been productive in Spain of a hundred times 
 more misery than the Inquisition. 
 
 The wars of Ferdinand were not confined to those against 
 the Moorish followers of the Prophet, but in Italy he fought 
 against other Christians for territory which he claimed as 
 appurtenant to the throne of Aragon, and wrested Naples 
 from the French king. The greatest glory of the reign of 
 Ferdinand and Isabella came as the ifruit of a peaceful enter- 
 prise for which Isabella made provisions. The discovery of 
 America by Columbus gave Spain a prestige and an oppor- 
 tunity for expanding its wealth and power far outweighing all 
 the conquests of Ferdinand in his bloody wars. The year 1492 
 witnessed the departure of the Moors from Spain and the 
 opening to view of the new world. On the death of Isabella 
 in 1504 there was a temporary separation of Aragon and Cas- 
 tile, occasioned by the selection by the Castilians of the arch- 
 duke Philip as regent during the minority of the infant 
 Charles, but Philip's death was followed by the choice of 
 Ferdinand as regent. In 15 12 he wrested Navarre ifrom 
 France, thus combining all Spain under his rule. The policy 
 of Ferdinand, steadily pursued throughout his long reign, 
 resulted in the concentration of the powers of government in 
 the hands of the king. The administration was carried on 
 through the instrumentality of five councils, the "Royal Coun- 
 cil" as the highest court of justice, the "Council of the Su- 
 preme" for ecclesiastical affairs and the Inquisition, the 
 "Council of the Orders" for the direction of the great military 
 orders, the "Council of Aragon" for the management of that 
 
SPAIN AND PORTUGAL 439 
 
 kingdom and Naples and the ''Council of the Indies" 'for the 
 territories discovered by Columbus. The firm alliance be- 
 tween church and state and the religious policy established 
 during this reign fixed the character and moulded the policy 
 of the Spanish government till modern times, and still in- 
 fluence it in great measure. Ferdinand died in 1516 and 
 Charles, son of his daughter Joanna and of her husband Philip 
 son of the German Emperor Maximilian I, succeeded to the 
 thrones of Castile and Aragon, and thus the House of Haps- 
 burg came to the united Spanish throne. In 15 19 Charles 
 succeeded his father as emperor. Serious revolts followed. 
 Charles was a foreigner by birth, reared in the Netherlands, 
 and it was only by intimidation that he obtained supplies for 
 his wars from the cortes. After his authority had become 
 well established and all rebellions suppressed, Charles con- 
 vened the Castilian cortes in 1523 and compelled them to grant 
 supplied before presenting their petitions for redress, thus 
 establishing a precedent adhered to therealfter, which gave 
 him what he required and still left him free to reject all de- 
 mands of the cortes. During his reign Cortes conquered 
 Mexico, Pizarro, Peru, and Milan and a portion of North 
 Africa were added to his dominions. In 1538, as a result of 
 the refusal of the nobles in the Castilian cortes to consent to 
 an excise tax, Charles excluded them from seats in the cortes, 
 which thereafter consisted of only thirty-six deputies from 
 eighteen towns, who were wholly wanting in strength to op- 
 pose the will of the king. On the abdication of the throne by 
 Charles, his brother Ferdinand became emperor of Germany, 
 and his son Philip succeeded to the Spanish throne and made 
 Madrid his capital. He was a narrow bigot, and his policy 
 was thoroughly despotic. By military iforce he crushed all 
 remnants of popular liberty, and by the aid of the Inquisition 
 he destroyed whomsoever he pleased. He caused the justiza 
 of Aragon to be put to death and assumed the right of naming 
 his successor. The control of the cortes over judicial affairs 
 was taken away. The extension of Spanish dominions gave 
 to the king ample power to take away the ancient privileges of 
 the provincial cortes separately, and the Spanish people suf- 
 
440 EVOLUTION OF GOVERNMENTS ANID LAWS 
 
 fered from the spread of Spanish dominion. In 1580 Phihp 
 maintained his claim to the throne of Portugal by an army 
 commanded by the Duke of Alva, and thus the whole penin- 
 sula became united under his rule. During his reign the In- 
 quisition employed its force to crush Protestantism in the 
 Netherlands, but met with a stubborn resistance that after the 
 martyrdom of vast numbers of its citizens finally resulted in 
 independence. 
 
 Philip died in 1 598, leaving a great empire to his son Philip 
 III, yet the search for gold in the New World and the prose- 
 cution of wars for the aggrandizement of the king consumed 
 the lives of men and impoverished those rich districts, which 
 when properly cultivated by a peaceful and industrious popu- 
 lation yielded riches in great abundance. Though in the wilds 
 of America priests sought to convert the heathen, Spanish 
 policy everywhere was wanting in moral strength. Wars of 
 conquest and the vast acquisitions of American gold failed to 
 make good the loss of the natural returns of the efforts of 
 her soldiers if employed in peaceable callings. The gold suf- 
 ficed for only one purchase and then passed into the channels 
 of trade. The industries of the Netherlands enabled them to 
 keep the gold which Spain wrested from her new subjects. 
 The narrow bigotry of Philip III found expression in 1609 
 in an order requiring all Moriscoes to leave Spain within three 
 days under penalty of death. The order was wholly without 
 justification in morals or economics, as the Moriscoes consti- 
 tuted the most industries, skillful and peaceful portion of the 
 population. They were leaders in agriculture and manufac- 
 tures, and their expulsion was a crushing blow to the material 
 resources of the kingdom, as well as a most cruel and un- 
 justifiable infliction on them. By their expulsion the revenues 
 were greatly reduced. The desire for foreign dominion and 
 devotion to the Catholic cause combined sufficient influence 
 on Philip to draw him into the Thirty Years' war in Germany. 
 Spanish troops took a leading part in that great contest and 
 came in contact with the Swedes and their Protestant allies. 
 The wars brought neither profit nor glory to Spain. The 
 Dutch gained signal victories over the Spanish fleets and 
 
SPAIN AND PORTUGAL 441 
 
 destroyed their naval ascendency, which had resulted from 
 the discovery of America. Though great victories were 
 gained on land, they were barren of advantageous results. 
 An edict calling all able-bodied men to join the army resulted 
 in a revolt in Catalonia, the driving out of the Castilian troops 
 and the establishment of a republic under the protection of 
 France. Still more important in its permanent consequence 
 was the revolt of Portugal, occasioned by the same measure, 
 and resulting in the independence of that kingdom in 1640. 
 As a result of naval victories the Dutch took from Spain its 
 possession^ in Malacca, Java, Ceylon and much of Brazil, and 
 forced it to abandon its claims to Holland and even to cede 
 to them the northern districts of Brabant, Flanders and Lim- 
 burg. Catalonia was soon reduced to submission. France 
 haying effected an alliance with England, forced the Spaniards 
 to submit to still ifurther loss of territory in the low coun- 
 tries. Under Philip IV and Charles II Spain continued to 
 lose prestige down to the time of the death of the latter in 
 1700. The effects of religious bigotry, of despotic govern- 
 ment, of the concentration of the wealth of the country and 
 the ownership of the lands in monastic establishments and 
 an indolent nobility, devoid of all enterprise and given over 
 to luxurious living, and of a most unwise and oppressive sys- 
 tem of taxation, are better shown by a comparison of con- 
 ditions in Spain at the close of that period with those in 
 former times, than by the mere loss of rulership over distant 
 provinces. The population of the country, estimated at 
 twenty millions under the Arabs and at twelve millions under 
 Ferdinand and Isabella, had fallen to six millions under 
 Charles. The Moors, the most industrious element of the 
 population, had been driven out; manufactures declined, fer- 
 tile districts became barren through lack of cultivation, the 
 destruction of trees and general inefficiency of the agricultural 
 system. After being the first naval power in the world Spain 
 ceased to be formidable on the sea. Her foreign commerce 
 passed into the hands of the Dutch and English merchants, 
 and she was unable to hold the trade of even her own colo- 
 nies in the new world. Education was neglected. The people 
 
44^ EVOLUTION OF GOVERNMENTS ANID LAWS 
 
 were neither instructed in letters nor in the useful arts. 
 Nowhere else has the contrast between a fairly just and Hberal 
 Mohammedan policy and a bigoted cruel and unjust enforce- 
 ment of a creed called Christian been exhibited so disad- 
 vantageously to the latter as in Spain. Nowhere else have 
 scientific truth and the moral law been so ruthlessly super- 
 seded by a false and cruel priestly tyranny. The war of the 
 Spanish succession, which ensued on the death of Charles II, 
 involved no principle of interest to the multitude, but was a 
 contest instigated by crowned heads for their own ends. 
 France, England, Portugal, Holland and Austria tvere all in- 
 volved, and bloody battles were fought, but at the end by the 
 accession of the Archduke Charles to the throne of Austria 
 and the German empire England found that the cause for 
 which it had fought was the one most dangerous to its inter- 
 ests. Peace was concluded leaving Gibraltar and Minorca in 
 the possession of England with the added privilege of im- 
 porting slaves into the Spanish colonies. The right of Philip 
 V to the Spanish throne was recognized, the cause of the Cata- 
 lans, who had supported Charles, was abandoned, and they 
 were left to defend themselves. Though they fought obsti- 
 nately, the power of Castile was too great ; they were crushed 
 and all their ancient liberties were forever after denied them. 
 Thereafter they were ruled from Madrid under Castilian laws. 
 Later Philip neglected his subjects at home and caused many 
 of them to fight against Austria for possessions in Italy. The 
 contest dragged on till his death in 1 744. No advantage came 
 to Spain from the long contest, but a little added territory 
 for Don Philip to pass to Austria on the extinction of his 
 male descendants. 
 
 Ferdinand, VI spoken of as weak and obstinate, had the 
 blessed courage to keep the country at peace. He refused to 
 be drawn into the Seven Years' war, and for the thirteen years 
 of his reign he allowed his subjects exemption from the hor- 
 rors o,f war. The reign of this monarch also witnessed a 
 marked reaction against the papal power. In 1753 he as- 
 serted his right to appoint to all important benefices, and of 
 the 12,000, which the Pope had filled before, Ferdinand left 
 
SPAIN AND PORTUGAL 443 
 
 only fifty-two. He next issued an edict that henceforth papal 
 bulls should not be obeyed till they had received the royal sanc- 
 tion. Charles III, who came to the throne in 1759, continued 
 the work by driving out the Jesuits, restricting the extension 
 of church lands, and moderating the cruelties of the Inquisi- 
 tion. At the time of the American revolution Spain joined 
 with France against England, and on the conclusion of peace 
 gained Minorca and Florida. This reign was one of material 
 progress. The ministers sought to restore prosperity by the 
 encouragement and protection of industry and trade. By a 
 most comrtiendable ordinance issued in 1773 an effort was 
 made to remove the Castilian prejudice against trade by de- 
 claring that no loss of rank or privilege should be occasioned 
 by engaging in industrial occupations. Agriculture was 
 stimulated by the construction of roads and canals, and by 
 removing the restriction on inclosures, that had been imposed 
 at the instance of the owners of the great flocks oif sheep 
 which overran the country and destroyed all cultivated crops. 
 Charles III died and Charles IV came to the throne at the 
 outbreak of the French revolution. A Bourbon king could 
 not sympathize with a demand for popular rights, and the 
 policy of the Spanish monarch was reactionary and directed 
 to strengthening the despotism. Spain joined the first coali- 
 tion against France and sustained crushing defeats in the 
 campaigns of 1793 and 1794, due mainly to inefficient organi- 
 zation and want of supplies. This was followed by a treaty 
 of peace which bound Spain in an alliance with France against 
 England. In 1800 Spain ceded Louisiana to France and 
 agreed to aid her in all her wars, and in 1801 invaded Portu- 
 gal at the call of Napoleon. In the struggle with England 
 the Spanish fleet was destroyed and the prestige of the former 
 nation at sea firmly established, but French influence still 
 dominated, and in 1808 Napoleon caused Charles IV to ab- 
 dicate and placed his brother Joseph on the throne. A popular 
 uprising was temporarily successful and entrusted the gov- 
 ernment to a junta of thirty four, to rule in the name of 
 Ferdinand, but Napoleon soon scattered their army and re- 
 stored his brother to power. The national party made Cadiz 
 
444 EVOLUTION OF GOVERNMENTS ANID LAWS 
 
 its capital, and in 1810 the cortes assembled there. In 181 2 it 
 promulgated a constitution providing for a limited monarchy 
 with all legislative power in the hands of a single national 
 assembly. 
 
 With the aid of the English under Wellington the French 
 were driven out of Spain in 181 3, and in the next year Fer- 
 dinand 7th returned to Madrid and assumed authority. He 
 set aside the liberal constitution, restored the nobles and the 
 monasteries to their privileges and exemptions from taxation, 
 allowed the Jesuits to return and the Inquisition to resume 
 operations. A tyrannical and profligate court and bigoted 
 clergy again combined to crush all liberal sentiment. In 1819 
 the sale of Florida to the United States, the revolt of the Span- 
 ish colonies in America and the ill success of the government 
 in its efforts to reduce them to obedience, caused great popular 
 discontent throughout Spain. In 1820 a revolt started at 
 Cadiz, which rapidly spread over the whole country. The 
 king accepted the constitution of 18 12, dismissed his ministers 
 and put liberals in their places. The cortes met and proceeded 
 to abolish the monasteries, the Inquisition, the clerical titles 
 and entails of landed estates, and to pass laws to secure free- 
 dom of the press and of public meetings. This was distasteful 
 to the monarchs df Europe, and in 1823, at the dictation of the 
 Holy Alliance through a congress at Verona held by France, 
 Austria, Russia and Prussia, a French army invaded Spain 
 and restored despotic power to Ferdinand. 
 
 In 1829 Ferdinand issued an edict abolishing the Salic law, 
 which excluded females from succession to the throne. In 
 1833 he died, and his infant daughter Isabella was proclaimed 
 queen with her mother as regent. Ferdinand's brother, Don 
 Carlos, claimed the crown under the Salic law and drew to 
 his aid the supporters of absolutism. Christiana was support- 
 ed by the liberals and granted a constitution establishing two 
 legislative chambers chosen by indirect election. This was not 
 satisfactory to the liberals, and in 1836 the constitution of 
 1 81 2 was revived. By 1839 the Carlists were subdued. In 
 1843, after temporary ascendency of the radicals, which had 
 caused Christiana to withdraw to France and the selection of 
 
SPAIN AND PORTUGAL 445 
 
 Espertero as regent by the cortes, Isabella became of age and 
 was recognized as queen. The history of her reign is one of 
 court intrigue, with the reactionary party in the ascendency 
 most of the time. Married to a cousin, who was believed to 
 be an imbecile, though not really quite so, she had piety with- 
 out morality, and the Spanish nation had to bear the shame of 
 a notoriously licentious woman as its queen; fat, coarse and 
 indolent, she yet was good natured, generous and kind hearted. 
 She even delighted in granting pardons, to which Spanish 
 monarchs generally showed great aversion. In 1854 there was 
 a popular uprising with rioting at Madrid, resulting in the 
 appointment af a liberal ministry, whose purposes were ex- 
 pressed in a proclamation stating: "We desire the preserva- 
 tion of the throne, but without the carmarilla which dishonors 
 it ; the rigorous enforcement of the fundamental laws, improv- 
 ing them, especially those of elections and the press ; a diminu- 
 tion of taxation founded on strict economy, and also respect 
 to seigniority and merit in the military and naval services. 
 We desire to give the towns the local independence necessary 
 to preserve and to increase their own interests, and as a guar- 
 antee of these things we desire a national militia." 
 
 In 1866 Isabella recalled her old ministers, the most prom- 
 inent liberals were driven into exile and the cortes dissolved. 
 In 1868 another revolt occurred which caused Isabella to go 
 to France. A cortes was summoned and met in 1869, which 
 adopted a new constitution providing for a limited monarchy. 
 It substituted the principle that the sovereign power was de- 
 rived from the people for the doctrine of divine right of kings, 
 granted religious liberty and provided for a Council of State, 
 a Senate and House df Representatives. A regent was chosen 
 to hold pending the choice of a king. In Nov. 1870 Amadeo 
 of Savoy was chosen by the cortes, 'but he left the country, 
 which he could not successfully govern, in Feb. 1873. There- 
 upon the cortes proclaimed a republic. War with the Carlists 
 followed without very decisive results. The republic lacked 
 vigor, and on the last day of 1874 Alfonzo XII, son of Isa- 
 bella II, was proclaimed king and acknowledged by the army. 
 There had been five changes of ministry in less than two years 
 
446 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 with much modification of the theory of government, the last 
 being a virtual dictatorship. The Carlists continued the fight 
 for a short time, when Don Carlos gave up the struggle and 
 left the country. Under the reign of Alfonzo XII as a con- 
 stitutional monarch Spain enjoyed peace till his death in 1885. 
 After his death a son was born, who came to the throne as 
 Alfonzo XIII. His mother ruled as regent through his mi- 
 nority, during which time Spain was forced by the United 
 States to relinquish its claims to Cuba, Porto Rico and the 
 Philippine Islands. 
 
 Shorn of its foreign possessions, it does not necessarily fol- 
 low that the people have to face more unfavorable conditions. 
 On the contrary there are evidences already that the statesmen 
 of Spain are beginning to grasp the true basis of national 
 greatness. Proud, indolent grandees, who refuse to do any- 
 thing useful and squander the resources of the country in 
 ostentatious living, are a curse and nothing more to any coun- 
 try. Those of Spain have if or many centuries been advanced 
 types of worthless nobles. Though popular government was 
 not unknown in many of the districts of Spain, and the people 
 of Aragon, Catalonia, the Basque provinces and the large cities, 
 have exhibited a disposition and capacity for preserving popu- 
 lar liberty, the composition of society throughout the nation 
 seems to be such as to still invite abuses in the administration 
 of public affairs. The grand lack in Spain, as everywhere else 
 on the face of the earth, is of knowledge, social virtue and 
 morality. The people are more generally illiterate than else- 
 where in Europe, though under the Arabs their schools were 
 probably the best then in existence. Primary education has 
 been compulsory by law since 1857, but only a small portion of 
 the population can read and write ; about twenty-five per cent. 
 Progress is being made, however, and the time is probably not 
 far distant when the Spanish people will take the rank to 
 which they are entitled, and which in past generations was not 
 inferior to any others in Europe. 
 
 By the fundamental law o/f June 30, 1878 the monarchy is 
 hereditary, and the king becomes of age at sixteen. He is 
 grand master of the eight orders of knighthood. He exercises 
 
SPAIN AND PORTUGAL 447 
 
 the legislative power in conjunction with the cortes, which 
 is composed of a senate and a chamber of deputes. The senate 
 is made up of three orders: i. Members by right of birth, 
 princes, rich nobles and the highest state officials. 2. Members 
 nominated by the king for life. 3. Members elected by the 
 state corporations and chief tax payers for a term of five 
 years. The number of the first two classes must not exceed 
 one hundred and eighty, and there may be as many of the 
 third. The chamber otf deputies consists of one deputy for 
 every 50,000 population, elected for five years, by electors 
 twenty-five years of age, who have paid a land tax of twenty- 
 five pesatas for one year or an industrial tax of fifty pesatas 
 for two years. There are eight executive departments, pre- 
 sided over by ministers responsible to the cortes for their acts. 
 Tn each province there is a civil governor and an elective coun- 
 cil chosen by the communes. The system of laws as in most 
 European states is based on the Roman law with local modifi- 
 cations. There is a court of first instance in each of the 501 
 judicial districts into which the kingdom is divided and a court 
 of second instance in each of the fifteen divisions in which 
 they are grouped, with a supreme court of cassation or review 
 at Madrid. Justice is administered publicly, and parties must 
 be represented by counsel. 
 
 On achieving independence ifrom Spain in 1640 Portugal 
 recognized John IV as king. Portugal exhibited substantially 
 the same tendencies toward increased power in the monarch 
 as most European states for the next century, though some 
 great reforms were made, especially in the reign of Joseph, 
 who came to the throne in 1750 and abolished slavery, which 
 had become a great curse to the country. From 1677 to 1828 
 the cortes never convened. The people of Portugal were pro- 
 foundly impressed by the French revolution and were involved 
 in the succeeding wars. In 1820 a constituent assembly 
 framed a constitution abolishing the Inquisition and with 
 many radical changes, but this constitution never became fully 
 operative. 
 
 In 1826 Pedro IV, who had ruled Brazil under his father 
 succeeded to the throne of Portugal also. He drew up a 
 
448 EVOLUTION OF GOVERNMENTS ANID LAWS 
 
 charter for a constitutional monarchy and appointed his brother 
 Miguel regent of Portugal. Miguel refused to recognize the 
 constitution and assumed absolute power. Civil war soon fol- 
 lowed. The struggle between the reformers and the adherents 
 to the ancient order continued with varying success and more 
 or less violence to the close of the reign of Maria II. Some- 
 times the constitution was followed, then it was amended, and 
 at other times disregarded, but by the time of the accession 
 of Pedro V in 1855 matters had become fairly settled, and 
 Portugal entered on a more peaceful and prosperous career. 
 In 1852, 1878 and 1895 the charter of 1826 was amended. 
 The monarchy was hereditary, and the king ruled with the 
 advice of a cabinet of seven members chosen by a premier 
 named by the king. The cortes consisted of a House of Peers 
 of- ninety members, nominated by the king for life. They 
 were not all titled nobles, nor were air the nobility entitled to 
 seats. The House oif Deputies had one hundred and forty- 
 eight members, elected by all male citizens twenty-five years 
 of age or over, who paid above $1.10 direct tax per year or 
 had an annual income from real estate of $4.50. By the 
 revolution of 1910 the monarchy was overthrown and a repub- 
 lic established. The religious orders were expelled and their 
 property confiscated. The Council of State was abolished as 
 were also all hereditary titles and privileges. The country 
 is divided into seventeen administrative and twenty-six judicial 
 districts. There are courts of appeals at Lisbon and Oporto 
 and a Supreme Court at Lisbon. There are governors in the 
 administrative districts and elected councillors in each of the 
 292 concellos and in each of the 3960 freguezias there 
 is a magistrate elected by the people, with authority corres- 
 ponding to that of a justice of the peace. Education is com- 
 pulsory under the law of 1844, which required all children 
 from seven to fifteen years of age to attend a primary school. 
 There is a university at Coimbra and there are at various towns 
 secondary and high schools. The improvement df the system 
 of government and the increased prosperity of the people have 
 followed the work of the schools. The economic, moral and 
 political value of the general diffusion of knowledge among 
 
SPAIN AND PORTUGAL 449 
 
 the people has been shown by the improvements in social and 
 material conditions. 
 
 Authorities 
 
 Henry Coffee: History of the Conquest of Spain by the 
 
 Arab Aloors. 
 W. H. Prescott: History of the Reign of Ferdinand and 
 
 Isabella. 
 W. H. Prescott : History of the Reign of Charles V of Spain. 
 Gibbon: Decline and Fall of the Roman Empire. 
 Guizot: History of Civilization. 
 Hallam: Middle Ages. 
 Encyclopaedia Britannica. 
 Continental Legal History Series, vol. i. 
 
CHAPTER XIX 
 
 Denmark, Sweden and Norway 
 
 The inhabitants at the Scandinavian peninsula and of the 
 islands and peninsula lying across the water to the south are 
 so closely allied in blood, and their history has been so closely 
 connected, that the development of their institutions will be 
 treated together. That they are closely related to the Germans 
 is evident, though the date of their separation precedes history. 
 Their earliest known . organization differed from that of the 
 Germanic tribes in the system of land tenure. The village 
 tenure in common never obtained so far as we are informed. 
 Land was treated as the property of the individual owner. 
 Slavery existed, though the number of slaves was not large. 
 The spirit of the people was distinctly opposed to submission 
 to authority, and the power to manage their affairs remained 
 in the body of freemen. Local affairs were determined in a 
 meeting of the free men of the district, and those o(f the whole 
 country by a general assembly of freemen, there being no sys- 
 tem of representation. Before the advent of written laws the 
 Swedes and Norwegians had their law-men, who were looked 
 to as repositories of the traditions of the law. They recited 
 the laws to the people in their assemblies — Things — and were 
 consulted in cases of doubt. The Scandinavians first became 
 known to the balance of Europe from their incursions by sea. 
 They were navigators at an early day, and their enterprises 
 were directed against all the coasts of the continent and British 
 Isles, which they pillaged and laid waste in the most ruthless 
 manner from the Baltic to the Mediterranean. No other coun- 
 try then produced such bold navigators and reckless warriors. 
 They did not engage much in commerce, but were generally 
 pirates and ifreebooters. At home they were little less fierce. 
 Courage and hardihood were the virtues most regarded, and 
 these seem to have been possessed in an unusual degree even 
 
 450 
 
DENMARK. SWEDEN AND NORWAY 451 
 
 by the women, some of whom took part in their expeditions. 
 In early times there were petty kings in each district, chosen 
 as leaders by the .free men, with little real power over their 
 followers. There was no code of laws, but disputes were de- 
 termined by combat or by the freemen in their assembly in 
 accordance with ancient customs and advice of their law- 
 men.^ Distinctions of wealth and leadership had developed 
 a nobility by the dawn of their history, but without destroying 
 the authority of the freemen assembled in their things over 
 all public affairs. 
 
 It is said that Gorm the Old, who flourished between 860 
 and 936, was the first to extend his authority over all Den- 
 mark including Schleswig, Holstein, Skania and part of Nor- 
 way. A little earlier Harold Fairhair had subdued all the 
 petty kings in Norway and placed the fylkis or shires under his 
 earls and the herads, (subdivision of the fylkis), under his 
 lendermenn. The date and extent of the domination af the 
 early Swedish kings is so interwoven with the mythical that 
 it is impossible to say much with certainty. Eric who ruled 
 in the tenth century is said to have extended his power over 
 Denmark and his son Olaf, who succeeded him in 993, was 
 the first Christian king of Sweden, having been baptized about 
 A.D. 1000. These were times of almost ceaseless war, and 
 no compact and efiicient system of government was established 
 by any of them. The name of Cnut, the Dane, stands out 
 prominently in history because of his conquests in England 
 about 1 01 8. He extended his power over Norway also and 
 into Sweden. Tradition mentions earlier rulers over the Scan- 
 dinavian races, the greatest of whom was Odin, reputed a 
 Scythian chief, who extended his power from his native land 
 in the Russian steppes to Sweden and Norway, and introduced 
 to the people the religion and institutions of his ancestors. His 
 kingdom is said to have included not only all Denmark, Swe- 
 den and Norway but much of the country lying along the line 
 of his march from his native land. There are many points df 
 similarity in the customs of the pagan Scandinavians and those 
 of the ancient Scythians, and there appears good ground for 
 
 ^ Continental Legal History Series, Vol, i, p. 535. 
 
452 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 believing that they were carried into the north by Scythian in- 
 vaders. Odin the leader seems to have been translated into 
 Odin the god of v^arriors, and to have become the principal 
 deity of northern nations. Frigga, the earth, daughter and 
 wife of Odin, and Thor, first born son of Odin and Frigga, 
 were the leading deities worshipped, and not only animals but 
 human beings were sacrificed to propitiate them. It was the 
 fashion of northern rulers to trace descent from Odin and to 
 fortify their claims to authority 'by the superstitious veneration 
 ;for the supposed gods. Odin is said to have established his 
 power and residence in Sweden about 70 B.C., and the dynasty 
 he established to have continued till 630 A.D. The reigns of 
 Odin and his immediate successors are described in the tradi- 
 tions as peaceful and prosperous and are accepted as a golden 
 age of prosperity. Little can be told with any fair degree of 
 certainty of those early times. 
 
 The system of laws prevailing throughout the Scandinavian 
 countries in the time of Cnut imposed fines, definitely fixed for 
 each offense from murder down, graded according to the rank 
 of the injured party. For an injury to the person of a high 
 nobleman the fine was twelve times as much as in case of an 
 ordinary freeman. For theft the fine was generally triple 
 value oif the stolen article. The modes of trial allowed the 
 accused to clear himself by the oaths of compurgators, swear- 
 ing that they believed him innocent. Judicial combat was 
 a recognized mode of trial, as were those by ordeal of fire 
 or water. Trial by jury was also allowed. 
 
 On the death of Cnut his dominions were divided between 
 his three sons. The history of the following century is filled 
 with the wars of rival claimants of kingly power. While these 
 claimants fought, Wendish pirates pillaged the people, who for 
 their protection entered into an association for their mutual 
 defense, built ships, manned them and captured many of the 
 pirates. Here was the spectacle of war and discord among 
 princes and an assumption off the function of protecting them- 
 selves from external foes by the people. After long and deso- 
 lating civil war Valdemar overcame his rivals. Prior to his 
 reign all freemen had been permitted to come to the national 
 
DENMARK, SWEDEN AND NORWAY 453 
 
 council armed, but in his time the clergy and the nobles took 
 away this privilege, and the peasantry of Denmark and Sweden 
 lost most of their political rights. 
 
 Valdemar II of Denmark made conquests in the east but was 
 unable to hold them, and the city of Lubec succeeded in freeing 
 itself from his rule. After the loss of much of his foreign 
 possessions Valdemar caused a general survey to the made olf 
 his kingdom. The provinces were divided into Episcopal dio- 
 ceses, which were subdivided into parishes and small districts, 
 from each of which a fixed contribution of men and ships for 
 the defense of the country was required. To remedy the con- 
 fusion in the law occasioned by the charters of cities, by which 
 they had been granted the right to administer the law in 
 their own courts, the royal guilds ; the claims of the clergy of 
 exemption from secular power and the study of the Roman 
 civil law, Valdemar convened in 1240 a national assembly, at 
 which was promulgated what was intended as a code of laws 
 for the whole kingdom, called the Jutland law. By this time 
 feudalism had made its way into Denmark, the local assemblies 
 of freemen were no longer held, but were superseded by the 
 A del-Ting or Herredag, an assembly to which only the princes, 
 prelates and nobility were admitted. The peasantry had been 
 generally compelled to place themselves under some feudal lord 
 and thereby lose their independence. The national diet was 
 convened annually at Nyborg. During its recess the govern- 
 ment was administered by the king and his council, composed 
 of the leading nobles and officers of the kingdom. The marked 
 change which had occurred consisted in the development of a 
 class of land holding nobles, who shared political jx>wer with 
 the king to the exclusion of the great body of the freemen 
 who formerly met in the Lands Ting. 
 
 On the death of Valdemar II Eric succeeded and fought 
 with his brothers who refused bomage for their fiefs, and 
 then led an expedition into Esthonia : on returning from which 
 he was assassinated. Christopher's reign was noted for a 
 controversy with the church, resulting in an interdict against 
 his kingdom for seizure and imprisonment of the bishop of 
 Lund. Eric VII, Crippling, had bloody wars, in which many 
 
454 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of his subjects perished in a contest with the duke of Schleswig 
 and his alHes over the possession of the crown, followed by 
 further controversy with the church over the right to control 
 appointments to clerical offices, and was at last murdered in 
 his chamber (1287). During his reign the nobles extorted 
 from him a charter defining their privileges and the limits df 
 royal authority, which thereafter was renewed by succeeding 
 monarchs. He also granted charters to several towns and 
 made general regulations for municipal bodies. Eric VIII 
 warred with Norway, where the murderer of his father re- 
 ceived protection, and the controversy with the papal power 
 was renewed. Then followed a barbarous warfare with his 
 younger brother over his right to certain fiefs. 
 
 Christopher II on his election by the diet in 13 19 was re- 
 quired to sign a declaration; That the bishops and all other 
 members of the Holy Church should freely enjoy their rights 
 and liberties, property and vassals, as formerly, and should be 
 entirely exempted from taxes and the secular jurisdiction: 
 That no ecclesiastical person should be arrested, exiled or 
 deprived of his goods, without the Pope's bull, if a bishop, 
 and if an inferior clerk, only by the regular sentence of his 
 canonical judge : That the chiefs should have feudal juris- 
 diction over their estates to the extent of amercing in small 
 penalties according to the custom of each province, and that 
 the king should not make war without the advice and consent 
 of the prelate and principal men of the kingdom : That the 
 burghers should enjoy their freedom and not be subject to 
 any new toll or tax without consent of the diet : That the 
 merchants should be repaid the sums borrowed from them 
 by the king or his bailiffs : That no impost should be laid 
 on the free peasantry contrary to the established laws and 
 customs : That a parliament should be held annually at 
 Viborg: That no man should be imprisoned or deprived of 
 life or property without public trial and conviction before the 
 proper courts and with the right of appeal to the highest trib- 
 imal : That plundering shipwrecked vessels should be pun- 
 ished : That no law should be enacted except by parliament, 
 and that the king alone, with the advice of the nobles and pre- 
 
DENMARK, SWEDEN AND NORWAY 455 
 
 lates, should have power to change the above rules. Christo- 
 pher lavished grants of lands on his favorites. He was 
 rewarded for his generosity with revolts and driven from his 
 kingdom, which he vainly ifought to recover and died after 
 fourteen years of turmoil. The king had lost his power. The 
 turbulent feudal lords and the rising towns of the Hanseatic 
 league dominated the country. His death was followed by a 
 period of turmoil. Valdemar IV, who after some delay was 
 elected king, had both civil and foreign wars which brought 
 misery on the people. 
 
 During the period we have just considered the course of 
 events in Norway was far from peaceful. Sverre in 1202 
 after a long struggle took the throne from the youthful Mag- 
 nus V. Having gained the crown by the sword, he had to 
 fight to keep it. Having incurred the displeasure of the Pope, 
 his kingdom was laid under an interdict. He died after twen- 
 ty-five years of strife. After three brief reigns came that of 
 Hakon, who also had to fight to maintain his authority. His 
 last important undertaking was a disastrous expedition to Scot- 
 land. Magnus VI became king in 1263. He granted charters 
 to Bergen and Trondheim and made regulations for their mu- 
 nicipal affairs, trade guilds and fraternities. He also compiled 
 a general code of civil and criminal laws, which was accepted 
 by the people assembled in the Gida Ting in 1274. It provided 
 for an annual Law Ting at each chief town of the kingdom, 
 presided over by a judge and attended by a panel of jurors. 
 Trial by battle and ordeal had already been abolished, and two 
 witnesses were required to establish a crime. Compurgators 
 were still allowed. The kingdom was again divided, as for- 
 merly, into marine districts, each of which was required to 
 furnish its quota of men and ships. Beacon stations were 
 established on the heights, by which signals could be passed 
 from point to point in case of invasion. Erik married the 
 daughter of Alex III of Scotland, and involved his country in 
 a fierce and profitless war with the Danes in defense of the 
 murderers of Eric Crippling. Hakon made war on the king 
 of Sweden to avenge the murder of his son-in-law. As a result 
 Magnus Senek was placed on the Swedish throne and after- 
 ward succeeded to that oif Norway also. 
 
456 EVOLUTION OF GOVERNMENTS ANID LAWS 
 
 In Sweden slavery was abolished by King Magnus in 1335. 
 Margaret was chosen their first queen by the Danes and Nor- 
 wegians. War followed with Albert of Sweden, and he was 
 taken prisoner. In 1397 there was assembled at Calmar dele- 
 gates from the diets of Denmark, Sweden and Norway, who 
 joined in choosing Eric king of the three countries. Articles 
 of union were agreed on, by which the three countries became 
 united under the same sovereign and his male issue, choice of 
 sons to be made by the representatives of the kingdoms, but 
 each kingdorri was to be governed by its own laws. The Han- 
 seatic league, then flourishing, was confirmed in its privileges 
 in the towns of the three kingdoms. Eric entered into war 
 over Schleswig, which at length involved the German emperor 
 and the intervention of the Pope. He made a pilgrimage to 
 the Holy Land, leaving his wife as regent. He had wars with 
 the Hanse towns, which wasted the country and finally resulted 
 in a treaty confirming the commercial privileges of the league. 
 The Swedes rebelled against Eric's misrule and civil war fol- 
 lowed, which was terminated through the intercession of the 
 bishops,- who this time were peacemakers. Eric provoked re- 
 volt and war again ensued, followed by another congress at 
 Calmar, at which the election df a successor to the throne was 
 confided to a college of one hundred and twenty delegates, 
 forty from each state, to include representatives of the pre- 
 lates, judges, burgomasters and free peasants. Complaints 
 against Eric's rule finally resulted in the choice of Christopher 
 as his successor, and Eric became a pirate. 
 
 The peasants of Jutland revolted against the high taxes and 
 oppression of the nobles, but their resistance was overcome in 
 the usual manner. Christopher made unsuccessful war on the 
 Hanse towns. Christian was chosen king by the Danish nobles 
 and then by the Norwegians, but Knutson was named by the 
 Swedes, each acting separately. War followed ; Knutson was 
 defeated and driven out and Christian recognized as king of 
 Sweden. Another revolt headed by the archbishop of Upsala 
 again placed Knutson on the throne, from which he was again 
 deposed. On his death Sten Sture received the support of the 
 national diet df Sweden and defeated the Danes in a great 
 
DENMARK, SWEDEN AND NORWAY 457 
 
 battle. In 1478 the university of Copenhagen was founded 
 and that of Upsala in Sweden soon afterward. 
 
 John, having been chosen by the Danes and Norwegians, 
 invaded Sweden to enforce submission there and finally ob- 
 tained their recognition. In an attempt to subjugate Deth- 
 marschen he met with a signal defeat by the free peasants, in 
 which great numbers of the Danish nobles were killed. Re- 
 volts again occurred in Sweden, and his authority was resisted 
 during the balance of his reign. Norway also rebelled but was 
 reduced to submission. In his contests with the Swedes and 
 their allies, the Hanse towns, the war degenerated into pil- 
 laging expeditions. The barbarity exhibited was extreme. 
 Christian II came to the throne in 1573. The Swedes resisted 
 his authority, and he called to his aid the clergy and the sol- 
 diers. Under the name of authority and religion the grossest 
 barbarities were committed. Having overcome the opposition, 
 partly by force and partly by promise, he was crowned at 
 Stockholm. At the close of the court festivals he seized the 
 leaders who had opposed him, and to whom he had solemnly 
 promised amnesty, and on the demand of a churchman for 
 justice against his enemies he turned them over to an ecclesias- 
 tical court for trial. They were condemned the next day, and 
 on the pretense that he as king could not shield them from 
 punishment for heresy, on Nov. 8th, 1520 a great number of 
 the leading men of the kingdom were butchered. The Pope's 
 agent was encouraged in his trade of selling indulgences, from 
 which he realized large sums from all factions. 
 
 Gustavus Vasa, son of one of the murdered men, after wan- 
 dering from place to place took refuge with the poor but free 
 Dalecarlian mountaineers, whom he incited to a revolt which 
 gained in force till with the aid oif the Hanseatic League the 
 Danes were driven from Sweden. In Denmark Christian ex- 
 cited the hostility of the nobles by forbidding the sale of serfs 
 and allowing them to change their masters, by prohibiting 
 wreckers from seizing shipwrecked goods and in lieu appoint- 
 ing bailiffs to save and return them to the owners on payment 
 of salvage. The nobles revolted and Christian left the king- 
 dom. Gustavus Vasa was then elected to the throne of Sweden 
 by the diet and became the founder of a famous dynasty. 
 
458 EVOLUTION OF GOVERNMENTS ANID LAWS 
 
 Frederick succeeded to the thrones of Denmark and Nor- 
 way. Alfter a time the dethroned Christian succeeded in 
 raising a revolt in Norway and involving the people in war, 
 but he was taken prisoner and spent the next twelve years of 
 his life in a dungeon of the castle of Sonderborg, and then 
 was removed to that of Kallundborg. Christian III came to 
 the Danish and Norweigan throne in 1533. The reformation 
 took early hold in Denmark, and religious strife, revolts of the 
 peasantry and many other internal disorders occurred. Chris- 
 tian adopted the reformed faith, took away all temporal power 
 from the clergy and confiscated the church property. The 
 blow at the clergy was accompanied by a confirmation of the 
 privileges of the lay nobility. Sweden also threw off its sub- 
 mission to the sway of the clergy and took side with Luther. 
 Under Gustavus Vasa Sweden enjoyed a degree of peace and 
 prosperity it had not known (for many generations. He died in 
 1560 and was succeeded by Eric his son. His rule was in 
 striking contrast to that of his father. He was fickle, wasteful 
 and plunged into needless wars at home and abroad, from 
 which the people sufTered more than the usual miseries. At 
 last they rose, deposed him and elected John in his place in 
 1568, who had war with Denmark and with Russia, from 
 which no good resulted. Frederick H of Denmark made cruel 
 war on the valiant Dithmarschen peasants, whom he attacked 
 with an overwhelming force and ruthlessly slaughtered. Then 
 followed long and wasting war with Sweden, the pretext for 
 which was the wearing by the Danish monarch in his coat of 
 arms of the triple crown, implying sovereignty over Sweden, 
 the independence of which had been established. The war 
 ended with the loss of his crown by Eric of Sweden. The 
 peace negotiated with King John did not last and more fight- 
 ing followed till, weary off war, a new treaty was made. 
 Frederick was a Lutheran and persecuted all of other faiths 
 with the zeal and intolerance which characterized the times. 
 Sigmund, son of John of Sweden, having been chosen King of 
 Poland, succeeded on the death of his father to that of Swe- 
 den. He was a Catholic and his subjects Protestants. Duke 
 Charles, son of Gustavus Vasa, was made regent. Religious 
 
DENMARK, SWEDEN AND NORWAY 459 
 
 differences resulted in civil war. Sigmund was deposed and 
 Charles made king. 
 
 Christian IV ascended the Danish throne at the age of 
 twelve. After reaching his majority he took an active interest 
 in promoting good government, especially in Norway, and 
 made a voyage around the north cape into the White Sea. 
 Then disputes with Charles of Sweden and war followed, 
 which was continued after the death oif Charles by his son, 
 Gustavus Adolphus. After great suffering by both parties a 
 peace was concluded. Gustavus waged successful war against 
 Poland, in which he gained great glory and great numbers of 
 his people lost their lives. At a meeting of the Saxon states 
 at Lauenburg in 1625, while the Thirty Years' war was in 
 progress, Gustavus was chosen captain general of the confed- 
 erate army of Danes, Germans, Scotch, English and Swedes. 
 His brilliant career in that memorable war ended with his life 
 in 1632 on the hard fought field of Lutzen. As a result of this 
 war the power and territory of Sweden were greatly increased, 
 though at a fearful cost df life and property to the people. 
 
 In Denmark power and landed property had steadily cen- 
 tered in the hands of a few, till the national assembly was no 
 longer convened, and a few great lords dominated in the coun- 
 cils of the state. In 1660 Frederick convened the national diet, 
 to which the nobles, the clergy and deputies from the towns 
 were summoned, but there was no longer a free peasantry to 
 be called. Norway was not called on for representatives. At 
 this diet the crown was made hereditary, and the king absolved 
 from the ancient limitations of his authority in favor of the 
 nobility. The great lords were forced to swear ifealty to the 
 hereditary and unlimited monarch. This was one of the most 
 remarkable revolutions in history and completely changed the 
 character of the Danish government, from one in which each 
 king had been forced at his accession to ix)wer to swear to 
 observe the very extensive privileges of the nobility, leaving 
 him little more than a nominal ruler, to an absolute monarchy 
 in which the king engrossed all executive, legislative and ju- 
 dicial powers and was raised above the law, save that the order 
 of succession to the throne, which the king was authorized to 
 
46o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 establish, could not thereafter be changed. This gave to the 
 king power to crush the great nobles, whose counsel he was no 
 longer required to take, and to fill all offices with persons of 
 his own selection, devoted to his interests. The motive for the 
 change influencing the clergy and lower orders in the diet was 
 to obtain relief from the tyranny of the oligarchy, who were 
 exempt from public burdens while owning a great share olf the 
 land. The union of the multitude in support of a single head 
 of the state in order to overthrow an obnoxious oligarchy is 
 not unprecedented, but no other instance is recalled where 
 absolute hereditary power has been deliberately conferred in a 
 time of peace. Christian V, soon after coming to the Danish 
 throne, took advantage of the war in which Charles XI of 
 Sweden had engaged with the elector of Brandenburg to attack 
 the now most dreaded foe of Denmark. The Danes and their 
 allies were at first successful by sea and land, but the youthful 
 Charles at last took the field and delfeated them. After many 
 battles with varying fortunes a peace was concluded, which 
 left both parties with the same possessions as at the beginning 
 of the war. 
 
 In Sweden Charles convoked a diet in 1680 for the purpose 
 of remodeling the government, as a result of which a new 
 board, called the Grand Commission, was established with 
 power to inquire into the transactions of the ministers and pun- 
 ish the usurpations of the senators. Steps were also taken to 
 recover grants of royal domains from the great nobles, to 
 whom they had passed by grant or mortgage, on repayment 
 of the original price paid the crown for them. Another diet, 
 convened the following year, gave the king authority to change 
 the constitution. This change was promoted by the same in- 
 fluences as those which changed the Danish constitution. In 
 1693 ^" ^ct was passed which in terms made the king absolute 
 and authorized him to govern the realm according to his will 
 and pleasure without being accountable to any earthly power. 
 
 Charles XII, 1697, was a minor of fifteen years at his 
 father's death, but notwithstanding the will of his father, 
 which extended his minority to eighteen, in six months he 
 assured the exercise of the unlimited kingly powers. He was 
 
DENMARK, SWEDEN AND NORWAY 461 
 
 .■>oon involved in w^ar with a combination formed by Denmark, 
 Saxony and Prussia. He met this formidable array with such 
 marvelous courage, energy and success, as to challenge the 
 admiration of all Europe and raise him to the first rank of 
 military heroes. Not waiting for the allies to combine their 
 forces, he at once assumed the offensive, attacked and crushed 
 Denmark first, then sailed over the Baltic, landed at Pernau 
 on the Gulf of Riga, attacked the poorly equipped and undisci- 
 plined Russians and destroyed army aifter army, far exceeding 
 his own in numbers. Having disposed of the Russian armies, 
 he turned upon the Saxons and passing through Lithuania he 
 entered Poland, took Warsaw and Cracow, deposed the Saxon 
 Augustus and caused the election of Stanislaus in his place. 
 Thence he marched into Saxony and the imperial domains. 
 Augustus was forced to sue for peace and make such terms as 
 the victorious Charles saw fit to impose. These required the 
 renunciation of the crown of Poland and the abrogation of 
 his treaty with the Czar. After resting a while in Saxony, 
 during which he drilled and perfected his army, Charles en- 
 tered on the task of invading Russia and overthrowing the 
 Czar. Peter had not been idle, but had profited by the bitter 
 experience of former defeats and devoted his attention to the 
 improvement of his army. Charles advanced but encountered 
 stubborn resistance and an exceptionally severe Russian winter. 
 Instead of pushing on toward Moscow, he turned to the south 
 and passed through the Ukraine to join iforces with the Cos- 
 sack chief, Mazeppa, whom he expected to join him with a 
 force of 30,000. Instead of Cossacks he was met by Russians. 
 After suffering heavy losses from the severity of the weather 
 and the want of supplies, as well as from frequent engage- 
 ments, in the summer of 1709 he again attempted to force his 
 way to Moscow with the remnant of his once splendid army. 
 Peter met him at Pultowa on July 8 with 70,000 men, and, 
 though he fought obstinately, overwhelming numbers decided 
 the day and the Swede's army was destroyed. With a small 
 band of horsemen Charles made his escape into the Turkish 
 domains, where he remained, supported by an allowance ifrom 
 the sultan, whom he sought to induce to raise an army with 
 
462 EVOLUTIOX OF GOVERNMENTS AND LAWS 
 
 which to renew the contest. Having played the role of a 
 most troublesome guest to the Turks till Oct. 171 4, Charles, in 
 company with only two officers, started back to the north, 
 reaching Stralsund safely on Nov. 21. He was most enthu- 
 siastically received by the army, but his presence was not 
 sufficient to enable the small Swedish garrison to resist the 
 combined besieging army of Danes and Prussians. He suc- 
 ceeded in escaping in a boat, just as the town capitulated, and 
 made his way across the Baltic into Sweden. Still bent on con- 
 quest, he raised a new army, with which he invaded Norway. 
 On his second invasion of that country at the siege of Fred- 
 erickhall on Dec. 11, 1718, he was struck by a ball and killed. 
 The career of Charles affords a striking example of the mis- 
 fortune it is to a kingdom to have a great military hero for a 
 king. It also illustrates the strange infatuation, which causes 
 the multitude to applaud and follow a leader who marches them 
 to destruction, so long as he succeeds in gaining battles and in- 
 flicting greater misery on his enemies than his own troops 
 suffer. Had Charles been content to make peace after his early 
 wars, which though carried on in the enemies' country were 
 really defensive, he might have claimed to be a protector of 
 his people, but his insane thirst ifor conquest caused him to 
 drain his country of men, to be killed or maimed in war or sold 
 into slavery as prisoners. His early campaigns brought booty 
 and wealth, but loss, disaster and poverty alone resulted from 
 the later ones. The great mass of men who followed him to 
 his wars never returned but met death or slavery. The people 
 at home endured the misery of the loss of friends, the sharp 
 pinch of poverty and distress resulting from the destruction 
 of war. Like the barbarous idol worshippers, the Swedes 
 continued to worship their hero and to furnish him victims 
 by tens of thousands. Rejoicing in the early days of success in 
 the destruction and misery he and his followers caused others, 
 they at last felt a ifull measure of it themselves. This is in 
 the very nature of war, yet savage man still worships the war 
 god in Christian churches, as well as in pagan grove or temple, 
 and still immolates on his altar the bravest and strongest of 
 the youths, leaving the perpetuation of the race to those physi- 
 
DENMARK, SWEDEN AND NORWAY 463 
 
 cally weaker and less courageous. By this system the race of 
 the peaceful, though weak and defective, is preserved and 
 propagated, while the more warlike element is destroyed. 
 
 Ulrica, younger sister of Charles, was chosen by the states 
 to be his successor, but she was required to renounce all claims 
 to despotic power and all hereditary right to the crown. A new 
 constitution in forty articles was framed, which provided 
 among other things; that all offices of trust or profit should 
 be filled by the native nobility; that all taxes should be ap- 
 proved by the assembly; that the senate should manage public 
 affairs in the absence of the sovereign and in case of a vacancy, 
 and that cities and towns were to be confirmed in their corpor- 
 ate rights. This constitution was accepted by the queen. The 
 policy of the new reign was to make peace, and this after some 
 delay was accomplished, but with large concessions oif territory 
 to Russia. Ulrica soon abdicated and asked the election of her 
 husband Frederick in her stead. This was done in 1720 with 
 a further extension of the guarantees of the constitution. The 
 king might propose laws, but the legislative power was vested 
 in the states. Sweden enjoyed the blessings of peace till 1741, 
 when bad counsel prevailed in the diet, and war was again 
 declared against Russia. In the campaign which followed the 
 advantage was with the Russians, and the Swedes lost Finland 
 as the price of peace. For blood and treasure wasted there was 
 no return but humiliation. 
 
 In Frederick IV, Christian VI and Frederick V, Denmark 
 found peaceful rulers, who devoted their energies to the im- 
 provement of the condition of their subjects, but were yet 
 without power, and perhaps lacking in disposition, to do justice 
 to the peasants and poor, who still submitted to the grinding 
 oppression of the nobles. 
 
 Sweden again became involved in war with Frederick of 
 Prussia, 1755 to 1762, but the drain of men and resources 
 was not so seyere as in her former greater struggles. Gust- 
 avus III ascended the throne of Sweden in 1771. He delayed 
 his coronation until he could make sure of the fidelity of the 
 soldiers, when he threw off the mask and refused to recognize 
 the constitution, under which his predecessor had been sub- 
 
464 EVOLUTION OF GOVERNMENTS ANID LAWS 
 
 jected to the dictation of the nobihty, and assumed dictatorial 
 power. The diet was summoned, and with the army at his 
 back Gustavus dictated terms to them and required the mem- 
 bers to swear to support his constitution, which contained 
 fifty-seven articles and placed all executive power in the king. 
 The diet was still retained, composed of the four orders, but 
 the king ceased to be dependent on its will. 
 
 Christian VII, a weak, narrow minded, dissolute son of a 
 very worthy man, who had been a good king, came to the 
 Danish throne in 1766. His accession was but another illus- 
 tration of the evil of transmitting power by inheritance, and of 
 the certainty that good men will sometimes have bad sons. 
 Christian traveled abroad and brought home favorites, chief 
 among whom was Struensee, whom the king found practising 
 medicine at Altona and took into such favor that he soon ap- 
 pointed him prime minister. His success in also gaining the 
 confidence olf the young queen led to his destruction. He was 
 arrested and tried, if a proceeding before a commission of his 
 bitter enemies who instigated the prosecution can be dignified 
 by that name, and condemned to death, which was inflicted in 
 1772. From this time till 1784, when the king's son Frederick 
 was associated with him and became the actual ruler, the queen 
 dowager administered the government, though in Christian's 
 name. The young prince displayed unexpected talents and vir- 
 tues. Through the stormy period of the French revolution 
 and the ensuing wars he succeeded in maintaining peace till 
 1 80 1, when, having joined Russia and Sweden in an alliance 
 to protect their commerce on the seas against searches and 
 seizures by Great Britain, the Danish fleet was defeated before 
 Copenhagen with heavy loss of men and ships. This defeat 
 was followed by a disruption of the coalition and a change of 
 policy hostile to France. In Sweden Gustavus III proceeded to 
 rule without summoning the diet, till impelled to do so in 
 1772 in consequence of a memorial of the nobles. He merely 
 made them a speech and dissolved the diet. In 1787 he joined 
 the Turks in waging war on Russia, but officers and men re- 
 fused to go out of the kingdom to wage an offensive war, 
 which the national diet had not sanctioned, and his expedition 
 
DENMARK. SWEDEN AND NORWAY 465 
 
 into Finland ifailed. The diet was afterward convened, and 
 Gustavus proposed a change in the constitution, conferring on 
 the king the power to declare war and make peace. To this 
 the clergy, burghers and peasant orders assented, but the 
 nobles opposed it. Thereupon Gustavus caused the arrest of 
 the refractory nobles, recognized Levenhaupt, president of the 
 nobility, as authorized to give assent on their behalf, and he 
 having affixed his signature to the act, it was treated as duly 
 concurred in by all the orders. The king then abolished the 
 senate and in its place appointed a council divided into two 
 departments, one composed of six nobles and six commoners 
 constituted the supreme judicial tribunal, the other of eight 
 nobles and four commoners had cognizance of minor matters. 
 The war with Russia was resumed and several bloody battles 
 followed, but on the conclusion of peace in 1790, each party 
 was left with the same territory as before the war. Neither 
 party had gained, but both had suffered fiom the struggle. 
 With a view to obtain supplies for an invasion of France, 
 Gustavus summoned a diet to meet in 1 792 at Gefle on the Gulf 
 of Bothnia. With a sufficient military force to overawe all 
 opposition he succeeded in obtaining what an exhausted coun- 
 try could furnish. Shortly thereafter he was assassinated at a 
 masked ball. His brother became regent and ruled in peace 
 during the minority of his son, who mounted the throne as 
 Gustavus IV. Gustavus conceived a bitter hostility to Napo- 
 leon, early joined the British in the coalition against him and 
 persisted in his warlike attitude when Russia and Prussia had 
 concluded peace. His obstinacy carried him so far as to cause 
 a rupture with Russia and Denmark. He attempted an inva- 
 sion of Norway but was driven out and in 1809 was deposed. 
 Charles XHI concluded peace with Russia, abandoning all 
 Finland. In 181 o the French Marshal Bernadotte was named 
 as successor to the Swedish throne, and in 18 13 he started with 
 20,000 Swedes to join the allies against Napoleon and his ally 
 Denmark and compelled the latter to cede Norway to Sweden. 
 He then invaded Norway and forced the unwilling people to 
 submit to Swedish authority. The Danes, having been on the 
 losing side, were forced to submit to the permanent loss of 
 
466 EVOLUTION OF GOVERXMEXTS AX!D LAWS 
 
 Norway and ceased to be a prominent power. The duchies of 
 Schleswig and Holstein at all times occupied a relation to the 
 Danish crown different from that of other provinces and had 
 been the cause df many wars. In 1848 there was war with 
 Prussia over these dutchies, and the peace of 1850 confirmed 
 the possession of Denmark, but in 1864 they were taken from 
 the Danes by the combined forces of Austria and Prussia and 
 thereafter retained by Prussia. 
 
 The modern constitution of Denmark was drawn up by an 
 assembly elected for that purpose in 1849 and ratified by King 
 Frederick VII in 1850. It provided for a diet of two houses, 
 both elective. The first, called the Folksthing, deals with the 
 budget and general affairs, and is composed of one member for 
 every 16,000 people, elected for a term of three years. The 
 second cham'ber, called the Landsthing, under the revision of 
 1866 consists of sixty-six members, twelve df whom are 
 named by the king, and the others are elected for terms of 
 eight years by districts. Its functions are confined to local 
 matters. The king is the executive head and is assisted by a 
 privy council. In its educational system Denmark takes high 
 rank. It is directed by a royal commission, composed of a 
 president and four assessors, who appoint the professors at the 
 university of Copenhagen and all teachers of grammar schools. 
 Attendance at the schools is compulsory, and nearly all can 
 read and write. Lutheran is the religion of State and con- 
 firmation is compulsory. Denmark is still afBicted with class 
 distinctions and an hereditary aristocracy with an undue share 
 of wealth and exemption from taxes and burdens. The per- 
 petuation of the aristocratic class is fortified by the law df 
 primogeniture, and other traces of the feudal system still abide 
 there. On the whole, however, Denmark has gained far more 
 in the last century from a more useful government than it did 
 from a more powerful one in former years. 
 
 The union of Norway and Sweden was recognized by the 
 congress of Vienna in 1814 and maintained till the peaceful 
 separation in 1905. Since the fall of Napoleon, Sweden and 
 Norway, so long given over to almost ceaseless wanfare, have 
 enjoyed a long period of peace and growing prosperity. The 
 
.DENMARK, SWEDEN AND NORWAY 467 
 
 two countries were united under one king in accordance with 
 the Riksact of 181 5, which left each free from the other as 
 to all internal affairs, their foreign relations only being joint; 
 both being under the same king, as executive head, and bound 
 to defend each other in case of war. Bernadotte ruled Sweden 
 and Norway under the style of Charles XIV from 18 18 till 
 1844. He devoted much of his energy to internal improve- 
 ments and those useful duties, which tend to the coni'fort and 
 happiness of the people instead of their destruction. No ma- 
 terial change was effected in the internal constitution df Swe- 
 den, either on its union with Norway or during his reign. In 
 1866 the constitution was amended and a diet established, con- 
 sisting of two chambers, one elected for nine years by the 
 provincial assemblies and towns, and the other for three years 
 by vote of all natives pHDSsessing the required property quali- 
 fication. The executive power is vested in the king, acting 
 under the advice of a council of ministers, who are responsible 
 to the diet. Legislation may be initiated either by the king or 
 the diet, but must be concurred in by both. The council of 
 state consists of ten members, seven of whom are respectively 
 the heads of the several departments of justice, foreign affairs, 
 army, navy, internal affairs, finance and ecclesiastical and 
 school affairs. The Riksdag annually appoints a board to ex- 
 amine the record of the proceedings of the council and with 
 power to indict them before the Rikratt. The Riksdag meets 
 annually. To be eligible to the upper house a person must be 
 thirty-five years old, own land worth 80,000 crowns or have 
 paid taxes on an annual income oif 1000 crowns. Members of 
 the upper house serve without pay, but members of the lower 
 house receive 1200 crowns per year, and are chosen by voters 
 possessed of a property qualification of the value of 1000 
 crowns or farm lands worth 6000 crowns, or who pay taxes 
 on an income of 800 crowns. All electors are eligible to the 
 lower house. Sweden is divided into twenty-four counties 
 with representative local governments, which levy local taxes 
 and regulate local affairs. The judicial system consists of 
 courts of three grades, i. The haradsratter consisting of a 
 judge and seven to twelve assessors elected by the people, in 
 
468 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 which the assessors, if unanimous, may decide contrary to> the 
 opinion of the judge. In the towns there are radhiisratter, 
 boards of magistrates. 2. Three ho f ratter (higher courts) in 
 Stockholm, Jonkoping and Christanstad and 3. the Supreme 
 Royal Court, two members of which attend sessions of the 
 council when questions of law are settled. Jury trials are not 
 allowed except in cases relating to the liberty of the press. 
 The educational system is of a high order. Attendance of 
 the schools is compulsory. The universities of Upsala and 
 Lund are flourishing institutions of high rank. 
 
 On the acceptance of the union of Norway with Sweden by 
 the Storthing, the Norwegian representative assembly, the king 
 sanctioned the constitution made at Eidwald on May 17, 1814,. 
 and promised that no change in it should be made without the 
 consent of the Storthing. The fundamental law of Norway 
 consists of 1 12 articles and made it an hereditary constitutional 
 monarchy with the same king and the same rules of succession 
 as those of Sweden. The constitution required the king to 
 take the following oath before the Storthing: 'T promise and 
 depose that I will govern the kingdom of Norway conformable 
 to its constitution and laws, so help me God and His holy 
 writ." The cabinet is to consist of Norwegians only, who 
 "shall carry on the government in the name and on behelf of 
 the king," three of whom shall constantly attend the king 
 while in Sweden. The ministry are accountable to the Storth- 
 ing. The organization of the Strothing is peculiar. It is di- 
 vided into two bodies, a Lagting and an Odelsting. The mem- 
 bers of both are elected by districts merely as members of the 
 Storthing, and the whole body selects from its members one- 
 fourth its number, who constitute the Lagting, the other three 
 fourths constituting the Odelsting. All bills are first intro- 
 duced in the Odelsting by a member or a minister. If passed, 
 a bill goes to the Lagting, which may concur or reject it. In 
 case df a rejection by the Lagting it is again considered and if 
 again passed with or without amendments it is once more sub- 
 mitted to the Lagting. If then rejected it is considered by the 
 whole Storthing, sitting as one body, a two third vote being 
 required to pass it. When passed the act went to the king,. 
 
.DENMARK, SWEDEN AND NORWAY 469 
 
 who signed if he approved it, and suspended if he disapproved. 
 If a bill had been passed without amendment by three regular 
 Storthings elected successively, during sessions separated by 
 at least two intervening regular sessions, it became a law 
 without the king's sanction. Appropriation bills were not 
 subject to the king's veto. 
 
 The democratic character of the Storthing was well tested, 
 when the hereditary nobility was abolished by an act pro- 
 posed in 181 5 and finally passed in 1824 under the provisions 
 of the constitution, without the king's sanction and over his 
 opposition and repeated objection. The people of Norway 
 escaped the blight of the feudal system. The peasants have 
 always been free, and their tenure of land has been that of 
 absolute owners. The lowest court in Norway is that of mu- 
 tual agreements, held once a month in every parish by a com- 
 missioner elected by the householders. Next is the sorens- 
 krior which sits quarterly and has jurisdiction of both civil 
 and criminal causes. The entire kingdom is divided into four 
 provinces, eighteen amts, sixty-)f our sorenskriveries and forty- 
 four fogderies. The stifts-amt court consists of three judges 
 with assessors, who are stationary in the chief towns in each 
 of the four grand divisions, and review the action of inferior 
 courts. All cases may be carried by appeal to the Hoieste Ret 
 at Christiania. A judge is liable in damages for a wrong 
 decision. The system of electing members of the Storthing is 
 peculiar, in that the voters choose electors who meet in each 
 county and name the members. A low property qualification 
 is required or a public appointment to qualify a voter. 
 
 Norway has a good school system, raging from generally 
 attended primary schools, middle and high schools to the 
 university at Christiania. The Norwegian of to-day, as his 
 ancestor the viking, still sails the sea, and considering the 
 number oif people in the country, Norway plays a very promi- 
 nent part in the carrying trade and foreign commerce of the 
 world. Her people are no longer the dread and terror of the 
 seas, but honest, peaceful toilers, faithfully doing their part 
 of the useful labors, yet preserving their old love of liberty 
 and retaining an essentially democratic state. 
 
.,470 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 In 1905, owing to the refusal of the King to accede to 
 the demands of Norway with reference to the foreign consular 
 service, the relations of the two countries were severed peace- 
 fully. King Oscar relinquished the crown of Norway on 
 October 27 and on November 18 Charles of Denmark was 
 elected king of Norway and took the name of Hakon VII. 
 
 In 1907 parliamentary suffrage was given to unmarried 
 women over twenty-five years of age who pay taxes on in- 
 comes of 300 kroner in the country or 400 in town and to 
 married women whose husbands pay taxes on like incomes. 
 
CHAPTER XX 
 
 Germany, Austria, Hungary and Poland 
 
 The characteristics of the early German society have been 
 briefly mentioned in Chapter II. The mass of the people were 
 freemen, who bore arms and held as slaves prisoners of war 
 and those condemned to slavery for crime. Important affairs 
 were decided in assemblies of the tribe, and the authority of 
 the nobles was temporary and largely dependent on the will 
 of the freemen. L^nds were owned in common and peri- 
 odically distributed. Each village chose its own chief, and 
 the heads of the hundreds and tribes were also elected by the 
 freemen. The chiefs were accustomed to gather a personal 
 following around them, which became the nucleus of military 
 power and the starting point of established authority. In war 
 the whole body of freemen constituted the army and went out 
 to battle. When large numbers combined they chose their 
 herzog. The Romans came in contact with the Cimbri and 
 Teutons about loo B.C. In numerous conflicts with various 
 tribes thereafter they invariably found them strong and brave. 
 In A.D. 6 Arminius formed a confederacy of such power that 
 he was able to fall upon Varus and utterly destroy his legions. 
 The Romans succeeded in establishing their authority over 
 most of Austria, Hungary and along the Rhine, but were 
 never able to extend their rule over interior and northern Ger- 
 many. With increase in numbers and advancement in capacity 
 for organization the Germans in turn drove the Romans out 
 and invaded the Roman provinces. The Marcomanni iformed 
 a powerful league, which the Romans under Marcus Aurelius 
 fought through successive campaigns. In the fourth century 
 the Goths founded a great kingdom, extending across the 
 continent from the Baltic to the Black sea. This was broken 
 up by the Huns, who poured in over the Russian steppes from 
 Asia. Under pressure from this invasion the Burgundians, 
 
 471 
 
472 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Vandals and Suevi moved westward, the first named taking 
 the valley of the Rhone, the Vandals passing on through Gaul 
 and Spain into Africa and the Suevi establishing themselves 
 in Spain. The Goths under Alaric invaded Italy, seized Rome, 
 and spread over Gaul and Spain. The Lombards also pushed 
 southward and succeeded the Goths in the mastery of Italy. 
 The Avars from the east established themselves in Hungary. 
 Though these and other tribes played a most important part 
 in the dismemberment of the Roman empire and established 
 their authority over large districts, the most important ad- 
 vances toward the organization of a great German state were 
 first made by the Franks, who dwelt along the lower Rhine. 
 They lived in close contact with the Romans of Gaul, with 
 whom they were comparatively friendly and ifrom whom they 
 borrowed notions of government. By the middle of the fifth 
 century the Salian Franks, who dwelt about the mouth of the 
 Rhine and along the shore of the North Sea, had an heredi- 
 tary king, who ruled over a state divided into gaue governed 
 by grafen appointed by the king. There were no nobles but 
 the officials and immediate followers of the king. The popular 
 assemblies of freemen were however still the source of auth- 
 ority and determined all matters of great concern. Under 
 Clovis, 481 to 511, the kingdom was extended both east and 
 west. 
 
 In the Germanic portion of the kingdom authority was dele- 
 gated to favorites, as grafen in the counties and herzogen over 
 larger districts, to whom were given large tracts of land. 
 While the kings increased the measure of their authority in 
 the western portion of their dominions and gradually ceased 
 to consult with the freemen of the nation, in the east the as- 
 semblies of the tribes and hundreds were still held, and the 
 authority of the king and his officers was kept in check. 
 Through the ownership of land and the retainers by whom 
 they were surrounded, the grafen and herzogen gradually ex- 
 tended their power over the freemen and shook off the re- 
 straints of the king, till under the impotent Merovings all real 
 authority was in their hands. 
 
 Under the more vigorous sway of the mayors of the palace, 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 473 
 
 Pepin and Charles Martel, the central power was restored to 
 some extent, and under Charlemagne a more thorough and 
 efficient system was established. The authority of the Merov- 
 ings was never established over the whole of Germany. The 
 Saxons and many others repeatedly repudiated it. They pre- 
 served their free tribal system and refused to accept Christi- 
 anity down to the time of Charlemagne. The Saxons refused 
 to confer on their chiefs authority to bind them by treaties. 
 No central authority capable of speaking for all the tribes 
 existed. The Bavarians also retained much of the same 
 independence. 
 
 Charlemagne extended his general system over Germany. 
 Over the border counties he placed Margraves, who admin- 
 istered justice in his name, collected tribute and commanded 
 the border forces. Over the interior counties he placed grafen, 
 who ^decided causes in accordance with local customs and the 
 general code. Four times each year each district was visited 
 by his messengers, who reported to him and carried his com- 
 mands. He also founded schools in connection with the 
 churches and monasteries. Under his rule, however, the li- 
 berties of the freemen were curtailed, and their great assem- 
 blies no longer held. The nobles only were consulted, and 
 their advice was followed when it suited him. The matters 
 which had before been decided by the assemblies of freemen 
 were determined by his appointees, and all popular gatherings 
 were discouraged. The burdens of his many wars fell heavily 
 on the people, who were often compelled to serve in distant 
 parts to their financial ruin as well as risk of life. From all 
 on whom he conferred lands, Charles exacted an oath of 
 fealty, he also required all his prelates, counts and many great 
 landowners, whose titles were not received as benefices from 
 him, to take a like oath. 
 
 The feudal system developed as an accompaniment of the 
 empire of the Franks. Its essence was rulership through a 
 theory of land tenure, by which the relations of the different 
 orders o>f society were based on their interest in or relation 
 to the soil. The ancient Germans had not reached the concep- 
 tion of absolute title to land. They regulated occupancy in 
 
474 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 severalty for from one to three years by the freemen of the 
 tribe, but did not entertain the artificial notion of a title which 
 continued through all time as an absolute property, even of 
 the tribes. The Romans made no distinction in theory between 
 title to land and to cattle and slaves employed in tillage. The 
 feudal system came with the seizure of the lands of the Ro- 
 mans and others in Gaul by the invading Franks. Dominion 
 over the land and the conquered people were acquired con- 
 temporaneously, and in granting local jurisdiction and mas- 
 tery, whether as a mere landowner or as an agent of the 
 sovereign power, Charlemagne exacted an oath of fealty. The 
 high regard in which the authority of the church had come to 
 be held and the fearful consequences, spiritual and temporal, 
 which were believed to result from a violated oath, gave to 
 the form of swearing fealty a force and value deemed of 
 first importance. The object of the kings in parcelling out 
 the land among feudatories was to secure their own dominion 
 by the military service which their vassals were bound to 
 furnish. The counts and Margraves appointed by Charle- 
 magne under his vigorous rule obeyed his commands and car- 
 ried out his policy, but under his weak successors the feudal 
 system developed power in the local lord, who became a despot 
 over those beneath him, a jealous and contentious neighbor to 
 his equals and a haughty and often rebellious vassal of the 
 king. On his own estate the feudal lord administered what 
 had to pass for justice. The actual tillers oif the soil were 
 without protection as against him. The practice of building 
 strong castles, within which the barons defied all authority and 
 from which they issued to rob the passing merchant or to 
 wage war on some neighbor nowhere gained more ample de- 
 velopment than along the Rhine, Danube and throughout Ger- 
 many. Not all of the lands of Germany were held by feudal 
 tenure. The village system prevailed largely in the south, 
 and peasant communities with lands in common have survived 
 in various parts to the present day. It would be a tedious and 
 perhaps profitless task to trace the endless wars for succession 
 to power and the ever changing frontiers of the German em- 
 perors, who held more or less sway, according to their varying 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 475 
 
 capacities and the shifting combinations of local rulers with 
 which they were forced to contend. Charlemagne was 
 crowned at Rome by the Pope and held real power in Italy. 
 In 918 Henry, Duke of Saxony, was chosen Emperor and, 
 being a capable and vigorous ruler, extended his authority 
 over the whole German population and in a great battle de- 
 feated the Magyars, who were the scourge of Germany at 
 that time. He encouraged the building o'f towns for the 
 traders, which were made places of defense, and at that early 
 day introduced a check on the tendency of the great lords to 
 draw all the freemen to their support as vassals. The towns 
 steadily developed as centers of industry and trade, and their 
 spirit of independence, which has never disappeared, has pro- 
 foundly influenced German civilization in all succeeding ages. 
 Probably this development should be attributed more !o the 
 genius of the people than to the policy of Henry. At Henry's 
 request the nobles after his death chose his son Otto as 
 his successor. He not only preserved but extended the bounds 
 of the empire. He added Lombardy to his dominions and 
 received the imperial crown from the hands of the Pope. 
 Henceforth the German emperors assumed the title of Roman 
 emperors and claimed to rule the Holy Roman empire, whether 
 receiving the crown (from the Pope or not and without regard 
 to the possession of real power in Italy. Otto had to contend 
 with rebellious subjects. The Roman tii:le and efforts to rule 
 Italy proved a source of weakness rather than strength to his 
 successor*. The real governing power soon fell into the hands 
 of local potentates holding large estates, or of leaders chosen 
 by the people in contests with the invading Northmen, Mag- 
 yars and Slavs, against whom the Emperors failed to give 
 protection. We read of dukes of Saxony, Bavaria, Swabia, 
 Lorraine and Franconia, whose power and influence grew as 
 feudal lords. Many unprotected owners of free or allodial 
 lands, being at the mercy of more powerful neighbors, chose 
 to surrender their holdings to a powerful chief and take them 
 back as fieif s under the protection of the feudal lord. The 
 central power was without sufficient vigor to restrain the great 
 lords, who levied war on one another at will. The imperial 
 
476 EVOLUTION OF GOVERNMENTS AND LAWiS 
 
 power ceased to be recognized as an inheritance after the ac- 
 cession to the throne of Arnuld, the illegitimate son of Carl- 
 man: thereafter the Emperors were elected. In 911 Conrad 
 of Franconia was chosen by the nobles under the lead of Otto 
 duke of Saxony. From that time down to the final separation 
 of Austria and Germany in recent times the office was filled 
 by election, but the number of electors was very limited. It 
 was the choosing of an Emperor by princes who exercised 
 more real power than he. The local rulers under the titles of 
 graf, herzog, Margrave, landgrave, king, elector and other 
 designations of lay rulers, and the bishops, archbishops, ab- 
 bots and other ecclesiastical rulers, were each subjected to 
 restraining influences of varying potency according to times 
 and circumstances. The kings and grand dukes, who acquired 
 authority over considerable districts, were dependent for their 
 military following on their feudatories. The ancient German 
 idea of determining questions of war and peace in assemblies 
 of freemen was never wholly obliterated, although at times 
 and in places disused. Local assemblies of the inferior no- 
 bility were often convoked in all parts of Germany, and ex- 
 ercised the power at times of choosing their overlords and 
 of deposing distasteful rulers. Feudalism effected the ex- 
 clusion from the assemblies of the great mass of the people, 
 but the nobility, of whom Germany has been at all times most 
 prolific, never became accustomed to submit to hereditary ar- 
 bitrary power. 
 
 While in other countries it is possible to trace a govern- 
 mental system maintained by changing dynasties through long 
 periods of time, in Germany we trace the development of the 
 civilization of a race of people maintaining the possession of 
 their ancient home and often sending out conquering hordes 
 to assume mastery of other lands, but never themselves at any 
 time subjected either to a single foreign ruler or a firmly 
 established government of their own with general power over 
 the whole German people. In the earliest times of which we 
 have any account, free German tribes occupied substantially all 
 of modern Germany, the Netherlands, and Austria. The Ro- 
 mans succeeded in imposing their authority on the southern 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 477 
 
 and a little of the western part of this territory, but it was 
 always a precarious dominion, and the crumbling of the 
 •empire first began where it came in contact with Germans. 
 Except for a brief period while the Romans held Dacia — in- 
 cluding modern Hungary. — the empire was bounded by the 
 Danube and the Rhine, beyond which the Germanic tribes 
 maintained their freedom and defended their possessions 
 against all comers. They have been attacked from every 
 quarter, from the west in the early days by the Romans and 
 later by the French and Spanish; from the north by their 
 kinsmen the Danes, Swedes and Norwegians; from the east 
 by Poles and Russians in the north and the later swarms from 
 Asia in the south — Huns, Avars, Magyars, Tartars and Turks. 
 In the southeast Goths, classed as of German stock, and 
 Avars, Huns and Turks have established successively their 
 authority over Hungary and part of Austria, but the German 
 stock has never been rooted out, and only in Hungary, where 
 the Magyars became the dominant race, have they been forced 
 to give way and allow an alien people to impose enduring do- 
 minion over them. On the other hand the German Franks 
 established their dominion over Gaul. The Goths, Vandals 
 and Suevi overran Spain. Wave after wave of German con- 
 quest swept over Italy under the names oif Goths, Lombards, 
 Franks and Germans, Even Britain was colonized and mas- 
 tered by the Angles and Saxons. 
 
 The preservation of the German race and the maintenance 
 of its possession of central Europe have not been due to any 
 strong centralized government, nor to harmonious or con- 
 certed action of the different states. The system of dividing 
 inheritances equally among males has, during much of the 
 time, been applied to those estates which carried also heredi- 
 tary rulership, and has resulted in repeated divisions of states 
 among heirs, who frequently fought with each other for the 
 whole. The Franks under the Merovings suffered for cen- 
 turies .from the contests of the heirs of their kings for the 
 inheritance. The rights af rulers great and small were the 
 only rights considered, and the people were constantly called 
 on to give up their lives in the struggles of vicious and cruel 
 
478 EVO/LUTION OF GOVERNMENTS AND LAW-S 
 
 nobles for mastery over the land. Nothing can be more sad 
 and dreary than the records of the bloody struggles brought 
 on by the ambition, malice, cupidity and other evil passions of 
 those invested with authority. If the accounts of wars great 
 and petty, with which the pages of German history are so 
 completely filled, were in fact the records of all that has been 
 done by the princes and rulers, a sweeping judgment, utterly 
 condemning the whole and denying all value in such govern- 
 ments, might safely be pronounced, but war has always been 
 the favorite topic of historians, and the doings of peace are 
 mostly left without other record than their impresses on so- 
 ciety and the face o)f the earth. Most prominent among the 
 characteristics of German society, the good effects of which 
 can be discerned in all periods of history, are the relative 
 purity of domestic life, the respect accorded women and the 
 equal treatment of children. No cruel theory of slavery to a 
 father or husband was ever adopted. Purity and warmth of 
 attachment of husbands and wives to each other and to their 
 children without distinction have in all ages been eminently 
 characteristic of the Germans. Though the Rhine was for 
 centuries infested by its robber barons, and though wrong and 
 robbery abode securely in the castles all over the land, in no 
 country and among no people has there developed a more 
 general and sturdy honesty than among the Germans. The 
 performance o)f promises and the payment of debts imply in- 
 dustry, without which the ability is wanting. So the German 
 people are noted for industry and thrift. This is especially 
 true of the low countries, Holland and Belgium, where the 
 manufacturing of fabrics and attendant foreign trade early 
 developed. The strength of the German people has been and 
 is moral strength. They have not until very recent times ex- 
 hibited marked capacity for great combination for military 
 supremacy, but have on countless fields exhibited a tenacity 
 and obstinate courage which has preserved the integrity of 
 their homes, where other people would have been crushed or 
 enslaved. German development has been many sided. Henry 
 III 1039-56 sought to reform the church, which had fallen 
 into great corruption, and in 1046 he entered Rome, deposed 
 
I 
 
 GERMANY, AUSTRIA, HUNGARY AND POLAND 479 
 
 the claimants to the papal throne and placed on it a man of 
 his own selection. In 1075 Gregory III assumed powers 
 never before conceded to the Pope and issued a decree for- 
 bidding the clergy to marry and against investiture in clerical 
 offices by laymen. In Germany half the land is said to have 
 been held by the clergy, to whom it had been given by the 
 sovereign, and the principal strength of the emperor was de- 
 rived from the support of the churchmen attached to his in- 
 terests by the feudal tie. Henry IV resisted and denied the 
 power of the Pope. In return he was excommunicated and 
 his subjects declared absolved from their allegiance by a papal 
 bull. A long continued struggle, known as the war of the in- 
 vestitures, followed, which did not end till the concordat of 
 Worms, by which as a compromise it was agreed that the 
 right of electing the prelate should be vested in the clergy in 
 the presence of the emperor or his representative, and that 
 he should invest them with the sceptre, and he resigned the 
 right of investing them with ring and staff. With Henry V 
 the Franconian House ended, and Lothair duke of Saxony 
 was chosen. The termination of the Hohenstaulfen dynasty 
 found the imperial authority reduced to a shadow. Frederick 
 Barbarossa and his successors expended so much of their time 
 in foreign wars, the crusade and in Italy, that the rulership in 
 Gerriiany was left almost wholly to the local princes. The 
 great duchies were broken up, and the number of lords holding 
 directly from the Emperor had been greatly increased. The 
 imperial cities had developed into free republics. The ruling 
 class in the country consisted of a large number of prelates, 
 dukes, palsgraves, margraves, landgraves and counts, inferior 
 in authority to the Emperor only and denying obedience to 
 him. Beneath these immediate nobles were the mediate feudal 
 barons with their inferior holdings. These looked down upon 
 the simple freemen, who held allodial lands, whom they fre- 
 quently robbed and oppressed. The great bulk cif the popula- 
 tion outside the cities consisted of the peasants and serfs, 
 without any share in the government and wholly at the mercy 
 of the nobility. Besides the free imperial cities there were 
 mediate cities, acknowledging the supremacy of the lord of 
 
48o EVO/LUTION OF GOVERNMENTS ANiD LAWS 
 
 the district. The election of the emperors, though in fact 
 dictated by a few great princes, in theory required the action 
 of the whole body of nobles who held by a tenure immediate 
 from the Emperor. On the occurrence of the interregnum 
 following the death of Conrad IV in 1254, through the influ- 
 ence of Pope Urban IV the electoral college was definitely con- 
 stituted of the archbishops of Mentz, Cologne and Treves, the 
 houses of Mittelsbach and Saxony, the Margrave of Branden- 
 burg and the King of Bohemia. Prior to this time the terri- 
 tories governed by the princes were not divided among the 
 heirs, as were private inheritances. This principle was now 
 changed and divisions were made of the principal duchies. 
 
 The divisions of the states resulted in that bewildering 
 multitude of petty sovereignties, which baffles all attempt at 
 clear description. Contemporaneous with this splitting of 
 states the free cities evidenced some capacity for organiza- 
 tion and combination for the common good. The Rhenish 
 Confederation founded by Mainz and Worms within a year 
 included seventy cities. Even more important was the Hanse- 
 atic League, originating with Lubeck and Hamburg, which 
 ultimately took in over eighty cities and became one of the 
 great commercial powers of Europe. In 1273 Rudolph of 
 Hapsburg, a petty Swabian noble, was elected Emperor and 
 obtained the grant of the fiefs of Austria, Styria and Carinthia 
 to his son Albert. In this manner the rule of the Hapsburgs in 
 Austria was inaugurated and thereafter many Hapsburgs 
 were recipients of the imperial title. 
 
 In 1356 Charles IV promulgated what is termed the 
 Golden Bull, defining the rights of the imperial electors in 
 certain particulars as to which there had been uncertainty. It 
 had not been settled whether all the princes of each electoral 
 house were entitled to vote, nor by what rule a selection of an 
 elector should be made from different branches of a family. 
 This was definitely settled on the principle of primogeniture 
 and a single vote to each house, thereby limiting the number 
 of electors to seven, the three archbishops before mentioned, 
 the King of Bohemia, the Rhenish palsgrave, the Duke of 
 Saxony and the Margrave df Brandenburg. The electors 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 481 
 
 were recognized as invested with sovereign powers within their 
 respective states, and their subjects were allowed to appeal to 
 the imperial tribunals only in case of a refusal to administer 
 justice. When the imperial authority was at a low ebb, vol- 
 untary combinations of various kinds and for different pur- 
 poses sprang up. The crusades developed the order of 
 Teutonic knights, which became a potent force for a time. 
 During the twelfth century a secret organization known as 
 the Vehmgericht grew up, and continued its activity down 
 through the reign of Charles IV (1347 to 1378). Its oper- 
 ations much resembled those of a modern frontier vigilance 
 committee in its summary administration of punishments for 
 offenses against the order. It operated as a check on the arbi- 
 trary power of the princes, though often used to gratiify the 
 malice of members of the organization. The Hanseatic league 
 grew in importance and waged successful warfare with the 
 Danish king for the protection and extension of its commerce. 
 The petty princes were allowed, and even encouraged, to form 
 leagues among themselves for the maintenance of peace. The 
 actual government of the country was divided between the 
 clergy, whose influence was powerful at all times, the great 
 princes, who were held in check by the feudal lords under them, 
 and the free cities. In these there were struggles between the 
 leading ifamilies claiming special privileges and authority and 
 the trades guilds and democratic elements which sought self- 
 protection. The greatest vigor was found where the brains 
 of many were actively employed in public affairs. With the 
 development of industry came the desire for knowledge and 
 the study of the works of the Greeks and Romans. Commerce 
 can only flourish in an atmosphere of order and regulated by 
 recognized laws. The study of Roman law was taken up by 
 the commercial cities, and its rules were followed where ap- 
 plicable. The Germany of today is noted for its schools and 
 the general diffusion and profundity of its learning. Com- 
 paritively poor in the quality and extent of their lands, the 
 Germans are perhaps the richest of all the people of the earth 
 in that best possession of all, the knowledge acquired through 
 past ages. The founding of its universities, which have ex- 
 
482 EVOLUTION OF GOVERNMENTS AND LAW)S 
 
 ercised such a potent influence on modern civilization, began 
 in the fourteenth century. Among the earhest were those of 
 Prague 1348, Heidelberg 1386, Wurzburg 1402, Leipsic 1409, 
 Rostock 1 41 9, Greifwald 1456, TiAbingen 1477. 
 
 The cities of Swabia formed a league for mutual protection, 
 which for a time became quite potent, and entered into an 
 alliance with the Swiss confederates, but the princes joined 
 in a counter alliance, and in 1388 in a battle at Doflingen the 
 cities were defeated and the tyranny of the petty despots be- 
 came still more grinding. In the next century a similar war, 
 known as the margraves war, was waged between a league 
 of many cities, headed by Nuremburg, and the princes. In 
 this, as in the case of the Swabian league, the advantage was 
 on the side df the princes. About this time the mediate nobles, 
 prelates and cities began to assert their rights through the 
 medium of local diets into which they gathered. They claimed 
 the right of determining questions of taxation and the pur- 
 poses to which the money should be put, and also to insist on 
 a regular administration of justice. These diets, composed 
 of the lesser nobility holding a position intermediate between 
 the peasants and the great princes, exercised a salutary check 
 on the arbitrary powers of the great lords. The discovery of 
 gunpowder caused a great change in the art of warfare and 
 was followed by the organization of bands of mercenary 
 troops who fought for whomever would employ them. In 
 1488 a Swabian confederation, in which princes, mediate no- 
 bles and towns joined if or the establishment of peace, produced 
 good results temporarily. 
 
 With the advent of gunpowder and mercenaries the feudal 
 tie was severed and feudalism came to an end. At the farther 
 extremity of the empire the Magyars, who first appeared as 
 nomads from Asia devastating the country and spreading 
 terror among the Germanic people, gradually adopted settled 
 habits and planted their habitations in a district which had 
 been most of the time under the sovereignty of the emperors. 
 
 Nowhere have the baneful tendencies of power long exer- 
 cised to fall into the hands of men who disregarded the pri- 
 mary purpose for which the power was conferred been more 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 483 
 
 clearly exhibited than in the great Roman Church. The 
 humble purity and self-sacrificing spirit of Jesus were the 
 foundation on which the vast power of the popes was built. 
 Temporal power and revenues became the prime concern of 
 those who ruled the church, and venality and immorality so 
 prevalent that, instead of leading the people in the paths of 
 virtue, the churches became centers of , pollution. Germany, 
 with its free cities, its local diets of nobles and its ancient tra- 
 ditions of virtue, quickening with the light of the ancient 
 world, which it had begun to study, was the natural field for 
 the Reformation. In 15 17 Martin Luther nailed to the church 
 door in Wittenberg his famous thesis. This was not the first 
 attack that had been made on the prevalent abuses, but it 
 precipitated the conflict which divided the Christian world into 
 hostile factions, who (fought, murdered, burned and tortured 
 each other with a fiendish cruelty almost inconceivable. Huss 
 suffered martyrdom one hundred years before for like senti- 
 ments. The immediate occasion of Luther's stand was the 
 sale of indulgences by papal authority. This was a remarkable 
 illustration of the prostitution of office for the gratification of 
 the officials. In order to raise money to maintain the pope 
 and high church officials in the splendor so incompatible with 
 the teachings of the Master, the Pope sent out his agents to 
 sell licenses to violate the moral law as taught by the church, 
 and to grant immunity from the consequences, of wrongdoing 
 before the commission of the act. The purpose was to raise 
 money to enable the clergy to gratify their own vices. It 
 was even worse in principle than the ordinar}^ robbery olf those 
 whom a ruler is bound to protect to minister to his vanity or 
 sensuality, because it encouraged those whose money was taken 
 under a fradulent claim of power to grant absolution in ad- 
 vance, to violate the moral law and do wrong to themselves, 
 and to others. It was a marked exhibition of the inherent 
 tendency for those who possess great power to forget the du- 
 ties they have assumed and the services they owe to the multi- 
 tude and pervert their offices to the gratification of their own 
 lusts and selfishness. The church, with its pure and lofty mis- 
 sion of leading men in the paths of virtue and brotherly love. 
 
484 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 was distorted into a hideous combination of impostors, who- 
 encouraged the violation of the moral law by others for the 
 price of sin paid to themselves. Against the power of the vast 
 church organization Luther opposed the teachings of Christ 
 and the moral law. The ifree cities, the local diets, the 
 schools, and even the clergy, perceived the strength of his po- 
 sition and the falsity, of the papal claims. The revolt against 
 the false assumptions of ecclesiastical power spread with 
 surprising rapidity throughout Germany. The democratic 
 elements sided with Luther, and the nobility divided. The im- 
 perial force naturally sided with the Pope. As in most revo- 
 lutions, the scope of the issue broadened and deepened. What 
 at first was merely a protest against a particular abuse became 
 an attack on the assumption and exercise of a function not 
 warranted by the constitution of the church. Direct account- 
 ability of the individual to his Maker, instead of mediate ac- 
 countability through the church, became the new doctrine. 
 Real spiritual penance of the sinner, instead of money pay- 
 ments or mortifications of flesh imposed by the priesthood, 
 was taught by the reformers. It was a partial return to the 
 democracy of the early church. Whatever forms or names 
 may be assumed, there are at the bottom only two distinct and 
 antagonistic principles of government, the despotic, by which 
 power is exercised by the ruler for his own purposes and 
 gratification, the democratic, where it is used for the good of 
 the multitude. The terms are here used to express purposes, 
 not forms of government. The former is essentially vicious, 
 because it wrongs the many to minister to the vices of the 
 few. The latter is essentially moral, because at its foundation 
 there must be justice, fellowship and mutual help, even if real 
 brotherly love is wanting. Many governments have seemed 
 to be almost wholly despotic. None have ever been purely 
 democratic in the above sense .'for any long period. The des- 
 potic tendency is always present in every established system. 
 Its tendency to grow has been nowhere better illustrated than 
 in the Roman church. 
 
 Naturally the despotic elements of society soon rallied to the 
 support of the Pope, while the more democratic sided with 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 485 
 
 Luther. This is a general statement of the situation, subject 
 to many quaHfications resulting from personal interests, sur- 
 roundings and influences. 
 
 Maximilian of Austria was on the imperial throne when 
 Luther took his stand, but died in 1519, and was succeeded as 
 emperor by his grandson Charles V, who was also King of 
 Spain, the two Sicilies, and Lord of Burgundy and the Nether- 
 lands. Charles was a typical despot. In the Diet of Worms in 
 1 52 1 he issued an edict denouncing Luther and placing him 
 under the ban of the empire. Before his election the electors 
 had exacted from Charles a promise that he would respect 
 German liberties and grant reforms which had been demanded 
 from Maximilian. The members of the diet became alarmed 
 at the power assumed by Charles in this edict and took steps 
 to impose checks on it. An administrative council was nomi- 
 nated for the government oif Germany while Charles should 
 be away. The number of troops to be raised by each state 
 for common purposes was also definitely settled. Charles in- 
 vested his brother Ferdinand with sole authority over the 
 Austrian territories and left Germany to enter on his war 
 with Francis I of France. During the absence of Charles 
 Ulrich von Hutten, a young nobleman, conceived the idea of 
 forming a united reformed German state, and under the leader- 
 ship of Francis von Seckingen a large force was gathered and 
 an attack made on the elector of Treves, but the princes joined 
 their forces and Seckingen was defeated and slain. The idea 
 of religious liberty suggested to the peasantry a revolt against 
 the grievous oppression under which they suffered, and in 
 1524 they sought their rights with the aid of a few of the 
 nobility. The war spread over much of southern and central 
 Germany, and at first the peasants met with some success, but 
 in the following year they were completely subdued and their 
 condition rendered even worse than before. By these wars 
 the power of the princes was augmented at the expense of the 
 lesser nobility. Nevertheless the Reformation made rapid pro- 
 gress and gained recruits from the various orders of society. 
 Diets were held for the purpose of settling the controversy, in 
 which Charles persistently sought to restore the authority of 
 
486 EVO-LUTION OF GOVERNMENTS AND L.\WS 
 
 the Pope, but met with stubborn resistance from the Protes- 
 tants. Arbitrary power is never tolerant of criticism of its 
 vices. It chngs to them with more tenacity and desperation 
 than to deserved authority. The sale of indulgences, the 
 simony, venality and sensuality olf the clergy could not be de- 
 fended by reason, and all discussion of the truth tended to 
 undermine clerical power. Stern repression was therefore 
 resorted to. Councils were held at Spires in 1526 and 1529, 
 at the first of which the administrative council, which leaned 
 toward the Reformation, granted religious freedom to each 
 state, but at the one in 1829 changes in religion were forbid- 
 den. In the following year a diet was held at xA.ugsburg, at 
 which the Lutherans submitted a summary of their doctrines in 
 what was styled the Augsburg Confession. They declined to 
 attend mass and held services of their own in defiance of the 
 will of Charles. In 1532 Charles granted the peace of Nurem- 
 burg, by which temporary toleration of the Augsburg Con- 
 fession was allowed. The Lutheran princes and cities formed 
 a league which took in most of the northern cities and princes 
 and many of the cities of southern Germany. After the 
 peace of Crespy, concluded with France in 1544, Charles 
 turned his arms against the Protestant league and defeated 
 them. He thereupon attempted to compel submission in re- 
 ligious matters. He assumed arbitrary powers which no Ger- 
 man Emperor since the early days had been able to wield. 
 His tyranny was distasteful even to the Catholics, and Maurice 
 of Saxony, who had sided with Charles in the first contests, 
 now became the leader of the forces against him. Joining 
 forces with Henry II of France, he compelled Charles to flee 
 from Germany and sign the Peace of Passau, agreeing to 
 summon a new diet, which, having met, again provided for 
 religious toleration olf such sort as each state might see fit to 
 accord. This still left abundant room for local discord. The 
 crime of heresy depended for its existence on the ascendency 
 of Catholic or Protestant and concord with or dissent from 
 the faith of the ruler. The atrocities perpetrated in the low- 
 lands by the duke of Alva, and by Frederick II in Bohemia, 
 were characteristic of a war carried on by a temporal despot 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 487 
 
 to maintain the false and pernicious rule of a malignant clergy. 
 Nor were the atrocities all on one side. Where they were in 
 power, the Protestants were often as intolerant and bloody as 
 the Catholics. The pure religion of Jesus was not in issue 
 on either side, but tyranny and malice brazenly claimed re- 
 ligious sanction for their fiendish atrocities. 
 
 The Thirty Years' war devastated Germany and exhibited 
 the evil that men may do, when to war's ordinary barbarities 
 are added the blind fury of religious fanaticism. Though Ger- 
 many was the principal field of the struggle, Spain, France, 
 England and Sweden were at times involved, and, when it 
 ended, France took territory on the west and Sweden from 
 the north, thereby materially diminishing the German terri- 
 tory. The long struggle left Catholics in the ascendant in the 
 south and Protestants in the north, and the peace finally con- 
 cluded at Westphalia in 1648 recognized Catholicism, Luther- 
 anism and Galvanism. The imperial jKDwer had been com- 
 pletely shaken off by the Protestant citizens and princes, and 
 after the peace substantially all authority passed to the diet, 
 which alone had power to make laws, declare war and con- 
 clude treaties in the name of Germany. Its power over the 
 states was however shadowy, for they were conceded the 
 right to make alliances among themselves, and even with 
 foreign ix)wers if not injurious to the empire. After 1654 
 the diet became a permanent body and was made up of rep- 
 resentatives of the princes and cities, but it exercised little 
 authority. The real governing power lay in the local rulers 
 and the governing bodies of the cities. As a result of the war 
 the population was reduced from about 20,000,000 to 6,000,- 
 000 or 7,000,000, and the destruction of property was in a 
 still greater proportion. The once flourishing and powerful 
 Hanseatic League was ruined and broken up in 1635, during 
 the progress of the war. Among the worst effects of the long 
 struggle was the growth of the spirit of despotism among the 
 ruling class, engendered by so long a strain of war, and the 
 feeling of helplessness, dependency and servility among the 
 multitude. Even in the cities democratic systems were con- 
 verted into powerful oligarchies or swept away by princely 
 
488 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 dictation. From the close of the Thirty Year's war to the 
 French Revolution despotic theories of government prevailed, 
 and the spirit of militarism grew. The Austrian Hapsburgs 
 continued to hold the imperial title most of the time, but under 
 the lead of vigorous rulers Prussia developed a rival German 
 power. From the time of Urban IV, when the constitution 
 of the electoral college was first settled, the Margrave oif 
 Brandenberg had been one of the imperial electors, and in 
 1438 the elector Frederick became a candidate for the im- 
 perial throne. His successor Frederick II, 1440, 1470, vigor- 
 ously asserted authority over the cities and built a castle in 
 Berlin. 
 
 In 1230 the priestly military order of Teutonic knights, 
 which had been formed during the. crusades, entered Prussia, 
 whose people had not yet been converted to Christianity. In 
 the course of a half century they subdued the country and 
 received a grsftit of dominion over it from the emperor. Un- 
 der their rule, the country, which was at their advent but 
 sparsely peopled, was settled with many German colonists, 
 and cities and towns were soon built. In the course of a 
 century the power of the order declined, and in 1467 West 
 Prussia became a fundal dependency of Poland. In 151 1 the 
 Teutonic Order chose Albert, of the Franconian branch of 
 the Hohenzollerns, as grand master oif their order. He em- 
 braced the Protestant cause and converted the lands of the 
 order into a secular hereditary duchy in 1525, continuing as a 
 vassal of Poland. In 161 1 this duchy fell by inheritance to 
 the elector of Brandenburg, and the two districts were joined 
 as one country under the Hohenzollerns. Thereafter in 1657 
 under Frederick William, called the great elector, it was de- 
 clared independent of Poland. In 1701 the elector Frederick 
 III, with the assent of the Emperor purchased by aid in his 
 wars, assumed the title of king and took the crown at Konigs- 
 berg under the style of King Frederick I of Prussia. Under 
 his rule Prussia made little progress and still ranked along 
 with Bavaria, Saxony and Hanover as dependencies of the 
 empire. His son and successor Frederick William reformed 
 the finances and remodelled the army, which he brought to a 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 489 
 
 high state of discipline and efficiency, so that Prussia took 
 fourth rank as a miHtary power, though only twelfth in popu- 
 lation. He was a despot, but a hardworking, thoughtful and 
 economical one, who labored to add strength to his state. 
 With the aid of the Saxons and Danes he defeated the Swedes 
 and drove them out of Pomerania. He collected taxes in 
 money for the maintenance of his army and abandoned entirely 
 the feudal military system. Everything was bent to strengthen 
 the military establishment, which absorbed five-sevenths of 
 the total revenues. Rigid discipline was imposed, not only on 
 the army but on all employed in the civil service, whose duties 
 were strictly defined and derelections severely punished. The 
 long and vigorous reign of Frederick 11, called the great, 
 1740 to 1786, witnessed the further development of the mili- 
 tary despotism and increase of the territory of the kingdom 
 at the expense of Austria and Poland. In his contests with 
 Austria, France and Russia, Frederick gained -g-reat victories, 
 but at fearful cost in human life and misery. The seven 
 years' war witnessed the destruction of numerous towns and 
 villages and a decrease of half a million in the population of 
 the kingdom, but gave to the king the title of Great. Freder- 
 ick nevertheless la:bored earnestly to advance the interests 
 and prosperity of the country in accordance with his despotic 
 ideas, and some of his innovations were real reforms. He 
 completely separated the judicial from the administrative de- 
 partments of government, abolished torture in trials and capi- 
 tal punishment for inferior offenses, confining executions al- 
 most entirely to cases of murder. He reduced the expenses 
 Off litigation and required that every cause be disposed of 
 within a year. He undertook a codification of the law, which 
 however he was not able to complete. He was a vigilant 
 master over all the public servants, whom he closely watched 
 and held to strict account. Himself an untiring worker, he 
 exacted strict attendance to duty from his subordinates. In 
 matters of religion he granted full liberty to each to go to 
 heaven by any route he chose to travel and allowed full free- 
 dom of discussion. The stratification of society he left un- 
 changed, but allowed no authority to the diets conflicting with 
 
490 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 his will. His successor ruled according to the same princi- 
 ples, but without the vigor or ability of Frederick. 
 
 Austria started as a Margravate of Charlemagne and grew 
 in prominence and territorial extent at times. In 1453 it was 
 raised to the rank of an archduchy. The frequent choice of 
 emperors ifrom the ruling house of Austria gave it a marked 
 prominence among the German states, and the history of the 
 rulers of Austria is largely identical with that of imperial 
 Germany. The Thirty Years' war and the growth of Protes- 
 tantism in the north weakened the influence of Austria in 
 Northern Germany, and was the entering wedge which ulti- 
 mately resulted in the destruction of the empire. As a result 
 of its struggles and negotiations, by 171 3 Austria had 190,000 
 square miles of territory and 29,000,000 people. The reign 
 of Maria Theresa, who ascended the throne in 1740 and ruled 
 till 1780, witnessed great wars, including the Seven Years' 
 war with Frederick of Prussia, but was a i^eriod of great 
 prominence for Austria, which added still further to its terri- 
 tory. Her husband Francis I was chosen Emperor (1745 to 
 1765), but his imperial powers were completely overshadowed 
 by those of his wife as ruler olf Austria. She was not only a 
 vigorous head of the military power, but a reformer in civil 
 affairs, though by despotic methods. Her son and successor 
 Joseph n attempted sweeping reforms, which however he 
 was unable to carry out. 
 
 At the breaking out of the French revolution nearly every 
 vestige of ancient popular government had been obliterated. 
 Arbitrary power was everywhere exercised under a claim of 
 divine right to rule, and backed by military force. In the 
 south there was no constitutional check on the absolute power 
 of the ruler of Austria, save in Hungary, and this was little 
 regarded. In the north the Prussian despotism was vigor- 
 ously maintained, and in the minor principalities equally arbi- 
 trary and despotic maxims were followed. Yet the traditions 
 of ancient liberties still survived, and the people were a 
 strong and vigorous race, fitted for rapid advancement under 
 favorable conditions. As a result o.'f the peculiar political 
 organization of Germany the superior nobility, who were the 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 491 
 
 real governing power, jealously guarded their social rank, 
 and by their code of Fiirsfenrecht valid marriages of those 
 ranking as the immediate vassals of the emperor could only 
 be made with those of equal rank. Offspring by marriage 
 with the inferior or mediate nobility were treated as illegiti- 
 mate. The hereditary political power of the margrave, duke 
 or other titled prince, passed by the rule of primogeniture, as 
 did the lands held in feudal tenure from the crown, but allo- 
 dial lands and personal estates were equally divided among 
 the sons, or in some instances the daughters also took a share, 
 sometimes less than that of a son. All the children however 
 ranked as nobles of inferior degree. The inferior nobility 
 were no less tenacious oif their social rank than the princes. 
 The rule of inheritance of rank by all the children has re- 
 sulted in great multiplication of the lesser nobility, many of 
 whom are exceedingly jMDor. Prior to the Thirty Years' war 
 the petty lords wielded considerable power and political in- 
 fluence through the diets, but the long struggle left them 
 shorn of their importance, except as they were the holders of 
 estates. As landholders they had valuable privileges. They 
 were judges of all matters of dispute between tenants of their 
 estates, and exempt from ta:?tes and from having soldiers 
 quartered on them. They had the right to settle tradesmen 
 on their estates in opposition to the town guilds. They en- 
 joyed exemption from that severity of punishment which was 
 visited on offending peasants. 
 
 The system of land tenures, prevailing at the time oif the 
 French Revolution and still unchanged in many parts, ex- 
 hibits many peculiarities, resulting from ancient ideas and 
 conditions. The village system with many modifications was 
 common throughout Germany, especially in the south and 
 among the Slavonic people. Whether the land was allodial or 
 held by feudal tenure under a lord, in many places all land, 
 except that immediately about the dwellings, was held in 
 common and subject to changing occupancy by periods of 
 varying length. Pasture and woodlands were usually used 
 in common, the tilled land only being divided. In other places 
 the cultivated land was divided and held in severalty, but 
 
492 EVOiLUTION OF GOA^ERNMENTS AND LAWS 
 
 without power of alienation by the owner without the consent 
 of all who might be entitled to inherit it, and the balance was 
 used in common. Various regulations were made with refer- 
 ence to the construction of dwellings and the division of the 
 land. In some places the village is built along a single street, 
 and the land cut in long strips extending back from the 
 dwellings. In others the dwellings are in a cluster and the 
 land divided so as to assign to each his three fields, to be 
 tilled according to the prevailing three field system of rota- 
 tion of crops. Where the system of permanent ownership of 
 these fields obtains, whenever cultivation is extended over 
 reclaimed forests or other common lands, a division oif these 
 is made, and each receives his allotment. As a result of in- 
 heritance still further divisions are made, and thus it has 
 come to be the case that much of the land is divided into ex- 
 ceedingly small patches, and one owner may have a great 
 number of them scattered a;bout. In some cases, for mutual 
 protection, the peasants gathered into larger villages, and the 
 lands they held were scattered over a considerable district. 
 In some places all the lands have been divided, while in others 
 there are still common pasture, forest and meadow lands. 
 In the northern and western parts the village system is not 
 general; the farms are in compact bodies, with dwellings 
 scattered over the country. This has been promoted by the 
 entailment of estates, by a custom of leaving the land to a 
 single heir and by restriction of the numbers of children. 
 
 The minute subdivision of lands has been regarded as an 
 evil, and in some of the states methods have been adopted by 
 the government of reapportioning the districts so as to throw 
 all the lands ai an owner into a compact body. This has 
 been found a somewhat difficult task to perform satisfactorily. 
 While some of these peasant holdings were free or allodial, 
 as a rule they were under a lord, who not only took a share, 
 of the produce, but was also accustomed to compel the tenant 
 to labor for him on his separate lands a portion of the time. 
 Such service was called frohn, and, as the lord was himself 
 the judge of all matters of right on his estate, was often very 
 oppressively exacted. The condition of the peasantry from 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 493 
 
 the establishment df the feudal system till the revolution was 
 essentially that of serfs, and those claiming allodial tenures 
 were loaded with taxes or pillaged in one form or another, so 
 that their condition was hardly distinguishable from that of 
 the feudatories. Poverty and oppression in peaceful times, 
 ruin and death in war, have been the lot of the German peas- 
 ants for many centuries. In the cities the ancient democratic 
 systems had been crushed, and all political power was in the 
 hands of the princes and nobility. 
 
 In the development of its system of laws the situation of 
 Germany was somewhat peculiar. After Charlemagne no 
 Emperor was sufficiently powerful, and at the same time sulf- 
 ficiently interested in general rules of law, to undertake much 
 legislation for the government of the empire. The feudal 
 system furnished the basis of land tenures, and the peasantry 
 had to submit to the rulership of their lords, whose will, what- 
 ever it might be, was law. On church lands the rule of the 
 clergy and heads of monastic institutions was probably rather 
 more mild on the whole than that of the barons, but was gen- 
 erally oppressive. For the government of trade the Roman 
 law was studied and followed with more or less modifications. 
 During the times when the free cities maintained their leagues, 
 they established their own rules and customs, but with the 
 founding df schools came the study of the learning of the 
 Greeks and Romans, and the principles of the Roman law 
 were taken as guides in the administration of justice. 
 
 The history and government of Poland is closely allied and 
 interwoven with that of Germany, though the stratification of 
 its society is somewhat different. In the earliest times of 
 which we have any accounts there were three orders, i. The 
 nobles, who were the rulers; 2. Peasants, personally free but 
 iDound to do fixed services for their lords ; 3. Serfs, who were 
 the property of their masters and under their absolute power. 
 In 965 King Mieczyslaw, in order to gain the hand of the 
 daughter of the Bohemian king, consented to become a Chris- 
 tian and be baptized. He thereupon proceeded to convert the 
 nation by commanding all Poles to be baptized. The Poles 
 came in frequent contact with the Russians in the east and 
 
494 EVOLUTION OF GOVERNMENTS AND LAW'S 
 
 the Germans on the west. In these struggles they were on 
 the whole fairly successiful in maintaining their position, and 
 by the time of Casimir III Poland held high rank among the 
 states. In 1364 the foundation of the university of Cracow 
 was laid by Casimir, whose plans with reference to it were 
 afterward carried forward by Queen Jadwiga. In 1347 by 
 the statute of Wislica many matters were regulated. The 
 duty of a palatine was to lead the troops of his palatinate ni 
 war and to preside over the diet of the nobles of his province. 
 Under the palatines were castellans who were their lieutenants 
 in war. Palatines and castellans were senators and judicial 
 officers who held court in their provinces. Niintii, deputies, 
 were chosen from the various districts of each palatinate. 
 The senators, o)f whom sixteen were ecclesiastics, all sat in 
 one house. By this statute the power of life and death, there- 
 tofore exercised by the nobility over the lives of their serfs, 
 was taken away, and a peasant ill treated by his lord was 
 allowed to remove to the estate of another. The inhabitants 
 of the towns, of whom many were Germans, were governed 
 by the law of Magdeburg, to administer which a Teutonic 
 tribunal was established at Cracow, consisting of a judg^ 
 versed in foreign law and seven citizens nominated by the 
 starosta. It is said that before this there were no written 
 laws in Poland. The national diet was made up of the nobles 
 and upper clerg}^ and some of the prominent citizens. It 
 soon not only determined questions oif peace and war but also 
 elected the kings. The diet chose as Casimir's successor Louis, 
 King of Hungary. In 1369 by the marriage of Queen Jad- 
 wiga with Jagiello Prince of Lithuania the two countries were 
 united. He was not a Christian, but became one and pro- 
 ceeded to convert his Lithuanian pagan subjects by command- 
 ing them to be baptized. In a diet held in 1496 it was or- 
 dained that thereafter no peasant or burgher should hold office 
 in the church, and the peasantry were obliged to submit their 
 causes to courts presided over by their noble masters. It was 
 also decreed that no king should declare war without the 
 consent of the diet. Shortly after this burghers and peasants 
 were prohibited from owning lands. In the diets the Slavonic 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 495 
 
 principle of unanimity of decision was adopted. This proved 
 not merely inconvenient but disastrous, and rendered it pos- 
 sible to prevent action on any matter of importance by merely 
 corrupting one member. When majorities were effectively 
 checked by minorities, fights and bloodshed often followed. 
 Nowhere was the rule of an oligarchy more complete and 
 tyrannical, and nowhere else was there ever more turbulence 
 and discord among the governing body. In 1529 Sigismund 
 published his code of laws in the White Russian language. 
 Though by the pacta conventa, exacted from Henry oif Valois 
 when he was elected to the Polish throne, the power of the 
 King had been closely limited, on the choice of Stephen Batory 
 as his successor, after Henry's return to France to become its 
 king, still further restrictions were imposed by the nobles. 
 Sixteen senators were chosen at each diet to attend and 
 counsel with the king, and no decree could be issued by him 
 without their consent. The right of final appeal to the king 
 was taken away, and his jurisdiction was limited to a small 
 district about his palace. The local diets of the palatinates 
 elected their judges, who constituted courts of final jurisdic- 
 tion over causes between the nobles. In 161 7 Wladislaw, son 
 of King Sigismund of Poland, was chosen Czar of Russia, 
 but he was soon driven out. In 1652 a single member of the 
 diet by his veto prevented a resolution in which all the rest 
 concurred. Afterward action was similarly defeated on many 
 occasions. Under John Sobieski the Poles took a leading part 
 in the great battles with the Turks which resulted in their 
 crushing deifeat before Vienna in 1683. From this time the 
 power of Poland rapidly declined. In 1772 the first partition 
 was made, in which Prussia, Austria and Russia each took 
 portions of its territory, and in 1846 the last vestiges of its 
 independent national existence were obliterated by its great 
 neighbors. The constitution and characteristics of Polish so- 
 ciety were peculiar. It had law but no justice, a king with 
 little real power and a sorely oppressed peasantry. The no- 
 bility, who alone possessed real power, surrounded themselves 
 with their retainers and lived in luxury and vice from the 
 labors of their serfs. In their associations with each other 
 
496 EVOLUTION OF GOVERNMENTS AMD LAWS 
 
 they were turbulent, quarrelsome and jealous, yet in contests 
 with kings and peasants they zealously maintained the unjust 
 privileges of their order. Poland presented compactly the 
 undivided rule of the nobility, which throughout Germany 
 was interspersed with democratic cities and peasant communi- 
 ties maintaining more or less independence in the manage- 
 ment of their local affairs. Its loss of national life was 
 mainly due to the lack of moral basis for the authority ex- 
 ercised by the nobility and the want o»f a recognized theory 
 binding the people together for their mutual protection. 
 Gross oppression of the multitude destroyed the military 
 efficiency of the common people, and the rivalries, ambitions 
 and jealousies of the nobility unfitted them for cooperation 
 against foreign enemies. 
 
 In its educational institutions Germany took high rank at 
 the time of the French Revolution, most of her great universi- 
 ties having been founded long before that time. Religious 
 toleration and a genuine desire for knowledge tended to favor- 
 able conditions for the dissemination of political truths. 
 While German rulers were alarmed at the uprising in France 
 and arrayed themselves on the side ai kingly rule, there was 
 much response among the people to the demand for liberty, 
 equality and fraternity. With the cry of "war to the palace 
 but peace to the cottage," Napoleon was able to recruit his 
 armies on German territory and to attach many of the smaller 
 states to his interests. Though himself a military despot, 
 Napoleon succeeded in posing as the leader of the multitude 
 in an attack on arbitrary power, and his successes were largely 
 due to the rising spirit of the commonalty. During the 
 progress of the wars with Napoleon reforms were freely 
 promised by German rulers, and in 1807 under the lead of 
 Stein Prussia established a responsible ministry as the confi- 
 dential advisers and executive agents of the king, abolished 
 serfdom, removed the disability to own land from the common 
 people, and allowed to all a free choice oif occupation. By the 
 Stadteordenung of 1808 the right of local self-government 
 was restored to the cities, and the system of administration 
 was thoroughly reformed. In 1810 Hardenberg broke the 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 497 
 
 bond between the peasants and landed aristocracy by making 
 the tenants absolute owners of two-thirds their holdings, leav- 
 ing the other third to the landlord. Yet more important was 
 the establishment of the great common school system under 
 the guidance of William von Humboldt, which has been of 
 such incalculable benefit. The military system was again re- 
 modelled so as to include in the army the whole body capable 
 of bearing arms. In the final struggle by which Napoleon was 
 overthrown, Prussia played a leading part. Thorough re- 
 forms were also made in the civil administration, and ap- 
 pointments were based on competitive examinations. 
 
 In Austria, though some concessions were made tending to 
 relieve the oppressed peasantry, and more were promised, no 
 marked change of system was inaugurated. 
 
 In 1806 Napoleon succeeded in forming the Confederation 
 of the Rhine, composed of central and southern states with 
 himself as protector, thus detaching from Austria and Prus- 
 sia a large German element. After the first peace of Paris a 
 congress of German state was held at Vienna to rearrange the 
 political constitution of Germany. Prussia was given part of 
 Saxonv, the Rhineland and Swedish Pomerania, Austria took 
 Salzburg, Vorolberg and Tyrol. The members of the Rhenish 
 confederation were mostly left with their territory intact, the 
 kingdom of Westphalia and other states established by Napol- 
 eon being abolished. Hanover was made a kingdom, Weimer, 
 Mecklenburg and Oldenburg grand duchies, and Lubeck, 
 Bremen, Hamburg and Frankfort free cities. The German 
 Bund was formed, composed of thirty-nine states, each inde- 
 pendent in its local affairs. The governing body was a Diet 
 in which each state was represented, sitting at Frankfort 
 under the presidency of the Austrian plenipotentiary. The 
 Diet was authorized to settle all disputes between members of 
 the confederation, neither of which was allowed to make war 
 on another, nor to form alliances against the interests of any 
 other member. It was further provided that each state should 
 establish a constitutional system of government. 
 
 The restoration of the Bourbons to power in France was 
 followed by a reaction in which the kings again asserted their 
 
498 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 arbitrary powers. Austria, under the guiding hand of Met- 
 ternich, continued to be a harsh and grinding despotism, ruHng 
 over a diverse population of Germans, Magyars, Slavs, Ital- 
 ians and others. No steps were taken to secure popular 
 representation or substantial justice to the lower stratum of 
 society. Neither did Prussia proceed to form a constitutional 
 government, though a numlDcr of provincial diets were ap- 
 pointed. The government soon began to if ear the march of 
 liberal ideas at the schools, and in 1819 a conference of the 
 ministers resulted in issuing a decree placing the universities 
 under police supervision and providing for rigid censorship 
 of publications. A commission was also appointed to detect 
 secret poHtical societies. In Nassau, Weimar, Bavaria, Baden 
 and Wiirtemberg constitutions were granted which resulted 
 in checking the arbitrary rule but little. The reactionists main- 
 tained their ground till 1830, when constitutional govern- 
 ments were established in Hanover, Brunswhick, Saxony and 
 Hesse-Cassel, and freedom of the press was granted in the 
 other constitutional states. The main advance made through 
 the medium of the Diet was in the abolition of trade restric- 
 tions and the foundation of the Zollverein, in which all the 
 states but Austria joined. In 1847, to prevent a popular ris- 
 ing which seemed threatening, Frederick William IV of Prus- 
 sia summoned to Berlin a diet, made up of representatives of 
 the provincial diets, which formulated its demands ifor popu- 
 lar representation in government, but the king refused to 
 abate his claims of power to rule by right Divine. In the 
 following year a popular convention was held at Mannheim, 
 at which four fundamental reforms were demanded, — free- 
 dom of the press, trial by jury, national armies, and popular 
 representation. These demands were universally adopted by 
 the liberals, and within a few days thereafter there was a 
 liberal ministry in each of the small states. In Austria Met- 
 ternich was dismissed, a new cabinet for Hungary appointed 
 and constitutional government promised. In Prussia there 
 was a popular uprising, and Frederick William promised 
 compliance with the demand for constitutional government. 
 An assemblv was summoned, at which the demands of the 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 499 
 
 rdformers were discussed. At last the king dissolved the 
 assembly, and on Dec. 5, 1848 granted a constitution and 
 gave orders for the election of a representative chamber. In 
 the meantime, at a preliminary meeting held at Heidelberg, a 
 call was made for all Germans who were or at any time had 
 been members of the Diet to meet at Frankfort to consider the 
 subject of national reforms. About 500 accepted the invi- 
 tation and convened. After long discussion and the failure 
 of many projects for a compact German state, a scheme was 
 adopted and accepted by a number of states under the name 
 of The Union, and on March 20, 1850 a parliament consist- 
 ing of two houses, chosen under the arrangement, met at 
 Erfurt. Austria again headed the reactionists, and under her 
 leadership representatives o(f the states met at Frankfort on 
 Sept. 4, 1850, and proceeded to act as the restored Diet. Prus- 
 sia stood at the head of the Union, Austria of the old Bund. 
 Prussia and its supporters however soon yielded, and from 
 June 12, 185 1, the old Diet was recognized and went on with 
 its sittings as before and the Union disappeared. Following 
 the outbursts of 1847 ^^^ 1848 was a period of reaction in 
 which political offenders, i.e. those opposing arbitrary power, 
 were severely treated, and petty despotism again appeared 
 triumphant notwithstanding the constitutions. In 1864 Prus- 
 sia took Schleswig, Holstein and Lauenburg from Denmark 
 by force. In 1866 the superiority of the military establish- 
 ment of Prussia over that of Austria was demonstrated in a 
 most remarkable campaign begun June 14 and ended July 3 
 b}' the battle of Koniggratz, in which Austria was completely 
 humiliated. Thereupon Prussia annexed Hanover, Hesse- 
 Cassel, Nassau, Frankfort, Schleswig and Holstein. All states 
 north of the Main were forced into a North German con- 
 ifederation with Prussia at its head. Steps were taken for 
 the formation of a confederate parliament, but the war with 
 France in 1870 cleared the way for the present empire. On 
 Jan. 18, 1 87 1 in the palace of Versailles and in the presence 
 of a great assemblage of German princes and officers the 
 Prussian king was proclaimed emperor of Germany. The ex- 
 isting German empire was thereupon established and sane- 
 
500 EVO<LUTION OF GOVERNMENTS ANID LAWS 
 
 tioned by Austria and the confederate parliament. On March 
 21, 1 87 1, the Diet met at Berhn and the constitution of the 
 North German confederation, which had been accepted in 
 1867 t>y a Diet elected by general ballot, was extended and re- 
 vised to meet the changed conditions. By this constitution 
 all the German states, except those included with Austria, 
 Hungary, Holland and Belgium, the two last named of which 
 of late have not been treated as strictly German, became con- 
 solidated in the new German Empire. 
 
 The present constitution was promulgated April 16, 1871, by 
 the Kings of Prussia, Bavaria and Wiirtemberg and the 
 Grand Dukes of Baden and Hesse. It defines the territory oif 
 the empire and gives its laws precedence over those of the 
 individual states. All laws are required to be proclaimed in 
 the Imperial Gazette. A common citizenship is established 
 throughout all Germany, on which no state may place 
 limitations. 
 
 The following matters are under the legislative control of 
 the empire; matters of domicile, citizenship, passports, trade 
 and industry, custom duties, commerce, regulation of weights, 
 measures, coinage and the emission of paper money, general 
 banking regulations, patents for inventions and copyrights, 
 protection of trade in foreign countries and organization of 
 the consular service, railways, navigation on water ways 
 common to several states, postal and telegraph affairs, recipro- 
 cal execution of judgments of one state in another, the authen- 
 tication of public documents, laws concerning notes, 
 obligations, commerce, crimes and legal procedure, police 
 regulation of medical and veterinary matters, and laws re- 
 lating to the press and to the right oif association. 
 
 The legislative power is vested in the Federal Council and 
 Reichstag. A majority of votes of each body is necessary for 
 the passage of a law. The Federal Council consists of fifty- 
 eight members, of which Prussia has seventeen, Bavaria six, 
 Saxony and Wiirtemburg four each. Baden and Hesse 
 three each, Mecklenburg- Schwer in and Brunswick two each 
 and Saxe-Weimar, Mecklenburg-Strelitz, Oldenburg, Saxe- 
 Meiningen, Saxe-Altenburg, Saxe-Coburg-Gotha, Anhalt,. 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 501 
 
 Schwartzburg-Rudolstadt, Schwartzburg-Sonderhousen, Wal- 
 deck, Reuss (elder branch), Reuss (younger branch), Schom- 
 berg-Lippe. Lippe, Lubeck, Bremen and Hamburg one 
 each, but the vote of each state must be cast as a unit. 
 The Federal Council has a general oversight of the execution 
 of the laws of the empire, appoints seven permanent commit- 
 tees from its own members and proposes laws to the Reichstag. 
 Each member of the Council has the right to appear and be 
 heard in the Reichstag, but the same person cannot be a mem- 
 ber of the Council and Reichstag at the same time. 
 
 The king of Prussia is made president of the Confederation 
 with the title German Emperor with power to declare war 
 and conclude peace, form alliances, make treaties, accredit 
 and receive ambassadors; but for a declaration of war in the 
 name of the empire the consent of the Council is required, 
 except in case of attack. He convenes the Council and Reich- 
 stag, adjourns and closes them. The Council and Diet shall 
 be convoked annually. The Council may be convoked with- 
 out 'the Reichstag, but the latter cannot be without the Coun- 
 cil. The Chancellor of the empire presides in the council. 
 Bills laid before the Council in the name of the emperor and 
 adopted are presented to the Reichstag and advocated by 
 members of the Council or by special commissioners appoint- 
 ed by them. The Emperor appoints and dismisses imperial 
 officials, prepares and publishes the laws and supervises their 
 execution. 'The decrees and ordinances of the Emperor 
 shall be made in the name of the empire, and require for their 
 validity the signature of the Imperial Chancellor, who thereby 
 takes upon himself the responsibility for them." 
 
 The members of the Reichstag are chosen by ballot for 
 three years' terms. An imperial official may be elected to the 
 Reichstag, but if he accepts an office of higher rank, or if . 
 a member accepts a new appointment to a salaried office of 
 the empire or a state, he forfeits his seat. The proceedings 
 of the Reichstag are public, and it may propose laws, and has 
 power to judge of the election of its own members and regu- 
 late the mode df transacting its business. A majority of all 
 constitutes a quorum. In matters not affecting the whole em- 
 
S02 EVOLUTION OF GOVERNMENTS AND LAWiS 
 
 pire only members from the states concerned may vote. Mem- 
 bers have a Hmited privilege from arrest and draw no pay 
 as such. Germany forms a custom and commercial union 
 with substantially free trade among its states, except that the 
 Hanseatic cities of Bremen and Hamburg remain free ports 
 outside the union. Custom duties are regulated by the empire. 
 A number of special provisions relating to taxation are 
 inserted. 
 
 "Art. 41. Railways, which are considered necessary for the 
 defense of Germany, or in the interest of general commerce, 
 may, by imperial law, be constructed at the cost of the empire, 
 even in opposition to the will of those members of the union 
 through whose territory the railroads run, without prejudice 
 however, to the sovereign rights oif that country; or private 
 persons may be charged with their construction and receive 
 rights* of expropriation. Every existing railway company is 
 bound to permit new railroad lines to be connected with it, at 
 the expense of the latter. All laws granting existing railway 
 companies the right of injunction against the building of* par- 
 allel or competitive lines are hereby abolished throughout the 
 empire, without detriment to rights already acquired. Such 
 rights of injunction cannot be granted in concessions to be 
 given hereafter." Provisions are made for the operation of all 
 railroads in harmony and all charges are subject to Imperial 
 control. Art. 48. "The post and telegraph system shall be 
 organized on a uniform plan and managed as state institutions 
 throughout the German Empire." 
 
 Art. 50. "The Emperor has supreme supervision of the 
 administration of post and telegraph." 
 
 Art. 53. "The navy of the Empire is a united one under the 
 supreme command of the Emperor." 
 
 The merchant marine is made subject to regulation by the 
 Empire. 
 
 Art. 57. "Every German is subject to military duty, and 
 in the discharge of this duty no substitute can be accepted." 
 
 Art. 59. "Every German capable of bearing arms shall be- 
 long (for seven years to the standing army." Three years in 
 active service, four years in reserve. The next eleven articles 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 503 
 
 also relate to military affairs and contain among others the 
 following provisions : 
 
 Art. 64. "All German troops are bound implicitly to obey 
 the orders of the Emperor. This obligation shall be included 
 in the military oath." 
 
 Art. 68. 'The Emperor shall have the power, if public se- 
 curity within the federal territory demands it, to declare 
 martial law in any part of the Empire ; and until the publication 
 of a law regulating the occasions, the form of the announce- 
 ment, and the effect of such a declaration, the provisions of the 
 Prussian law of June 4, 185 1 shall be considered in force! 
 Arts. 69 to 73 inclusive relate to finances. 
 
 Art. 69. ''All receipts and expenditures of the Empire 
 shall be estimated yearly, and included in the budget. The 
 latter shall be fixed by law before the beginning of the fiscal 
 year." 
 
 Art. y(^. "Disputes between the different states of the union, 
 so far as they are not of a private nature and therefore to be 
 decided by the competent judicial authorities, shall be settled 
 by the federal council, at the request of one of the parties." 
 
 Art. 78. "Amendments of the Constitution shall be made 
 by legislative enactment. They shall be considered as rejected 
 when fourteen votes are cast against them in the federal coun- 
 cil. The provisions of the Constitution of the Empire, by 
 which certain rights are secured to particular states of the 
 union in relation to the whole, shall only be modified with the 
 consent of the states affected." 
 
 An analysis df this readily shows that the leading purpose 
 subserved is that of organization and consolidation of the 
 German states into one Empire with increased military effi- 
 ciency. There is no article in the whole instrument clearly 
 framed to protect the citizens against the usurpation or unjust 
 use of power by the government. The Reichstag as a repre- 
 sentative body is the sole check on Imperial power. Its legis- 
 lative powers are not circumscribed. 
 
 To an American it seems strange that there is no separate 
 title devoted to the Judiciary. The mention of courts is inci- 
 dental and there is not a line establishing any independent 
 
504 EVOLUTION OF GOVERNMENTS ANID LAWS 
 
 power in them, with the sole exception that certain offenses 
 affecting the state are to be tried before the Court of Appeals 
 of the three free Hanseatic towns at Lubeck. The principal 
 mention of the courts is in the latter part of Article 75, as 
 follows : ''More definite provisions as to the competency and 
 the procedure of the Superior Court of Appeals shall be made 
 by imperial law. Until the passage of a law of the Empire, 
 the existing competency of the courts in the respective states 
 of the Empire, and the provisions relating to the procedure of 
 those courts shall remain in force. "^ 
 
 Each of the states included within the empire except Alsace, 
 Lorraine and the two grand duchies of Mecklenburg have con- 
 stitutional governments, and the six larger states have two 
 houses in their legislative bodies in which the upper includes 
 the nobility, clergy and representatives of the wealthy class, 
 and the lower is made up of representatives chosen by the 
 voters. 
 
 In the completeness of its military organization Germany 
 may fairly be accorded first place among all the nations of the 
 earth. Every man is subject to military service and no substi- 
 tution is allowed, every German capable of 'bearing arms is 
 required to serve in the standing army seven years from the 
 age of twenty-one to twenty-eight. The first three years he 
 must spend in active service and the remainder in the reserve. 
 After this he belongs to the landwehr for five years more. 
 Those receiving a fixed standard of high school training are 
 required to serve actively only one year. All males between 
 the ages of seventeen and forty-two, not included in the above, 
 are members of the landsturm, liable to be called into active 
 service in case of invasion. The emperor is the commander of 
 this immense force, which is most thoroughly and efficiently 
 organized with officers of various grades appointed by him. 
 
 Of the expenditures of the Imperial Government the army 
 and navy and military pensions have absorbed as high as 
 eighty per cent of the total. This, however, does not include 
 expenditures in the maintenance and operation of the rail- 
 roads, posts and telegraphs, which are paid from earnings and 
 leave a net surplus of revenue. 
 
 * Foreign Constitutions 1894. 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 505 
 
 Education is made compulsory throughout the empire. 
 Most of the expenses of the primary and secondary schools 
 are borne by the local governments, but much is done by the 
 imperial government to promote the educational system. Its 
 great universities rank with the best in the world. Many of 
 these have endowments which go far toward defraying their 
 expenses. No other country has done more to distribute 
 among its people the treasures of accumulated knowledge than 
 Germany, and none has profited more from the wisdom of 
 such a course. As a result of its most excellent school system 
 illiteracy among its people is almost unknown, and its great 
 universities and technical schools are famed the world over 
 for their thoroughness and breadth of learning as well as for 
 their progressiveness. At the head of the judicial system is 
 the Reichgericht, the judges of which, 90 in number, are ap- 
 pointed by the emperor. It is the supreme court and court of 
 appeals ifor the empire. All inferior courts are courts of the 
 separate states, but all are subject to imperial legislation. 
 Small civil cases involving amounts up to about $100 are de- 
 cided by the Amtsgericht. Above is the Landesgericht, of 
 which there are 170 in the empire, with more extended juris- 
 diction, and over this is the Oher Landesgericht, the highest 
 court of the state, exercising appellate jurisdiction. Petty of- 
 fenses are tried by a judge and two Schoffen: Serious crimes 
 by judge and jury. Courts of arbitration, presided over by a 
 judge, are also provided for commercial causes. The system 
 of procedure is rather more summary than that prevailing in 
 England and the United States. The law is studied as a pro- 
 fession, and advocates practice before the courts. The num- 
 ber of lawyers, however, in proportion to population is 
 relatively very small. The judges and members of the pro- 
 fession bear high rank for integrity and ability, and except in 
 rare political causes, the administration of justice is efficient 
 and creditable. A summary of the Civil Code which took 
 effect in 1900 will be ifound in the Appendix. 
 
 The political history of Hungary is interwoven with that of 
 Austria and can best be considered in connection with it. 
 
 The first king of Hungary is called St. Stephen, and ruled 
 
So6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 997 to 1038. He was converted to Christianity and took 
 active measures to convert his subjects. He was very zealous 
 in promoting the estabhshment of churches and monasteries. 
 The king owned' a large part of the lands, from which he re- 
 ceived a portion of the crops and military service from his 
 retainers on them. He also levied taxes on the products of 
 the mines and exacted one-thirtieth the price of merchandise 
 sold at fairs, as well as tolls on roads, bridges and ferries. 
 Presents to the king were also required from the towns on 
 given days. The power of the king was not that of an abso- 
 lute ruler over the whole country, but resembled more a great 
 proprietor's over his estate. The Church and the no'bility ex- 
 ercised over their domains substantially the same authority as 
 the king over his. At court the king had his lord palatine, 
 court judge, lord of the treasury and minor officials. The 
 towns elected their own judges and local officials. The labor- 
 ers on the estates of the king and of the nobility were without 
 political rights, and subject to the authority of their lords. 
 The powers of the king were not clearly defined. Appeals lay 
 from the acts of the nobles to the king, but in their own 
 domains the nobles were practically absolute masters. The 
 authority of the king was theoretically absolute, but subject 
 in fact to checks imposed by the nobility. A most remarkable 
 document, bearing a strong resemblance to the English Magna 
 Charta, is called the "Golden Bull," extorted from Andrew H, 
 who ruled 1205 to 1235, given in the form of a letter, by 
 which he recited that, ''The nobles and others in our realm 
 have suffered detriment, in many parts, of their liberties ar 
 established by King St. Stephen, through the power of some 
 kings, who either ifrom anger revenged themselves or listened 
 to the counsel of wicked advisers or sought their own advan- 
 tage." It then proceeds to ordain that the anniversary of the 
 sacred king should be celebrated at Stuhlweissenburg : that the 
 king should be present in person or by his palatine to hear 
 causes ; that all the nobles might freely assemble there ; that the 
 nobles should not be detained or oppressed except by due pro- 
 cess of law ; that no taxes should be levied on the estates of the 
 nobles or the clergy; that if a noble die without male issue his 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 507 
 
 daughters should inherit one-fourth his property and the rest he 
 might dispose of as he pleased, in default of which it should 
 go to his next of kin, but in case he was absolutely without 
 kin then to the king. If the nobles were called on to go out 
 of the country to war he must pay the expense. "The pala- 
 tine shall be judge over all the people of our realm without 
 distinction, but in capital cases and matters of property which 
 concern the nobles, the palatine shall not decide, without the 
 king's knowledge" ; that foreigners should not be given lands 
 and should not be elevated to dignities without the consent of 
 the council of the realm ; that offices should not be granted in 
 perpetuity, and Ishmaelites and Jews should be incapable of 
 holding them "excepting these four great lords, the palatine, the 
 banus, the court judges of the king and queen, no one shall 
 have two dignities at the same time. Should, however, we or 
 any of our successors at any time be disposed to infringe upon 
 any of these four orders, the bishops as well as the other lords 
 and the nobles of the realm shall be at liberty, jointly or singly, 
 by virtue of this letter, to oppose and contradict us and our 
 successors forever, without incurring the penalty of treason." 
 All the burdens were of course borne by the peasants and 
 laborers. From the fruits oif their toil the landed gentry lived 
 in idleness and drunkenness. Against the oppression of the 
 lord the peasant could only appeal to the lord himself, with 
 the chance of greater oppression for having made complaint. 
 In 1 5 14 the peasants were gathered for the crusade. Many 
 of the lords opposed it because they needed the laborers in the 
 fields. 40,000 of them assembled at Pesth. Instead of march- 
 ing against the Turks, under the leadership of George Dozsa 
 they marched against the nobles. They took many castles 
 and massacred such of the nobles and their families as fell 
 into their hands. The nobles finally rallied and under the 
 lead of the vayvode of Transsylvania defeated the peasants 
 and captured Dozsa, whom they placed on a red hot iron 
 throne and crowned with a red hot crown and gave a red hot 
 sceptre. Many others were tortured and killed. The diet, 
 which assembled soon after, ordained the perpetual servitude 
 of the peasantry, and fixed them to the soil, which before that 
 time they had been allowed to leave. At the same session was 
 
5o8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 passed and confirmed by the king what is termed the tri-partite 
 code, compiled by Stephen Verboczy the chief justice. It ac- 
 corded equal rights to all the nobles, who could not be deprived 
 of liberty without due trial and were exempt from taxation 
 and subject only to the king and as to the peasant it provided, 
 "The peasant has no sort of right over his master's land save 
 bare compensation for his lalbor and such other rewards that 
 he may obtain. Every species of property belongs to the 
 landlord, and the peasant has no right to invoke justice and 
 the law against a noble." 
 
 Austria, so long the head of the German Empire, has ceased 
 to be a part of it, but is still one of the great states of Europe. 
 The past century has witnessed the loss df much of its terri- 
 tory, including its possessions in Italy, but it still governs a 
 large and exceedingly rich district. When in 1806 Napoleon 
 established the confederation of the Rhine from sixteen Ger- 
 man States, the Emperor Francis renounced the title of em- 
 peror of the Romans and assumed that of Emperor of Austria. 
 Though promises of reforms were made, Austria constantly 
 recurred to its despotic methods, and lent its aid to perpetuate 
 arbitrary rulership throughout Europe. The only marked 
 step in advance during the long reign of Francis, who died 
 in 1835, was the establishment of a system of primary schools. 
 Discontent grew among the people, and in 1846 an insurrec- 
 tion occurred in Galicia. This was soon suppressed, and the 
 dismemberment of Poland was completed. In 1848 far more 
 serious outbreaks occurred. Metternich, the counselor off 
 tyranny, resigned and went to London. An imperial proc- 
 lamation was issued abolishing the censorship of the press, 
 establishing a national guard and convoking a national as- 
 sembly. Under the leadership of the members of the uni- 
 versity of Vienna the national guard and academic legion 
 organized a committee and dictated laws to the government. 
 On May 17, the Emperor Ferdinand and his wife fled to Inns- 
 bruck. Uprisings in Italy followed and soon after in Bohemia 
 and Hungary also. Civil war ensued between the imperial 
 supporters and the revolutionists, which did not end till 130,- 
 000 Russian troops invaded Hungary in support of the im- 
 perial cause. The triumph of the supporters of despotic rule 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 509 
 
 was accompanied by the slaughter of great numbers in battles 
 and by shooting and hanging the leaders of the revolt who 
 were captured. The congress organized by the revolutionists 
 was dissolved and the emperor, of his own motion, promulga- 
 ted a constitution. Many reforms and internal improvements 
 were now undertaken, but the old tendency to relapse into 
 military despotism soon asserted itself, and on Jan. i, 1852, it 
 was announced that the constitution was abolished. In 1859 
 the combined forces of France and Sardinia drove the Aus- 
 trians from Italy, and in March 1 860 the emperor promulgated 
 a new constitution, by which he declared that the right to 
 enact, alter and abolish laws should thereafter be exercised by 
 himself and his successors only with the cooperation of the 
 Reichsrath. This body was established for the empire and 
 to be composed of representatives of the several kingdoms in- 
 cluded within it. On Feb. 27, 1861, it was decreed that their 
 former constitutions should be restored to Hungary, Croatia, 
 Slavonia and Transsylvania. At the same time a law was 
 promulgated providing for the representation of the different 
 portions of the empire in the Reichsrath, which was made up 
 of two bodies, a house df peers and one of deputies. On May 
 I, 1 86 1, the new Reichsrath was formally opened by the em- 
 peror in a speech in which he said, "that liberal institutions 
 with the conscientious introduction and maintenance of the 
 principles of equal rights to all the nationalities of his empire, 
 of the equality of all his subjects in the eye of the law, and 
 of the participation of the representatives of the people in the 
 legislation, would lead to a salutary transformation of the 
 whole monarchy." Hungary, Croatia, Slavonia and Transyl- 
 vania declined to send representatives, claiming separate con- 
 stitutions. After the humiliating ddfeat by the Prussians in 
 1866, the emperor turned his attention to the improvement of 
 the affairs of his empire. The Hungarians were in passive re- 
 bellion, refusing to pay their taxes. In 1865, the emperor 
 had recognized the necessity of self-government for Hungary 
 in local affairs, and on Nov. 19, 1866, by an imperial rescript, 
 he promised the appointment of a responsible ministry and the 
 restoration of municipal self-government. Baron Beust, a 
 Saxon and a Protestant, was made prime minister of the em- 
 
510 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 pire. In 1867 the Reichsrath assembled at Vienna, and many 
 important measures of reform were adopted. On June 8, 
 1867 the emperor and empress were crowned king and queen 
 of Hungary at Pesth, at which time pardon and amnesty for 
 poHtical offenses were granted. ReHgious toleration was ac- 
 corded by the Reichsrath. In 1873 the power of choosing 
 members of the Reichsrath was transferred from the provin- 
 cial diets to the voters. 
 
 Under its present constitution Austria-Hungary recognizes 
 the hereditary succession to the throne by primogeniture in 
 the male line of the house of Hapsburg-Lothringen and, on 
 the failure of male heirs, in the female line. Two distinct 
 states are recognized as joined for common ends, each having 
 its own ministers and legislative bodies. These are subor- 
 dinate to a controlling body called the Delegations, consisting 
 of sixty members of each state, two-thirds elected by the lower 
 house and one-third by the upper house of each parliamentary 
 body. They usually sit and vote in two chambers, one -for 
 Austria and the other for Hungary, but in case of disagree- 
 ment they all sit together, and the decision of a majority is 
 binding on both states when approved by the emperor. The 
 administration of the empire is divided into three executive 
 departments, Foreign Affairs, Ministry of War, Ministiy of 
 Finance. These ministers are accountable to the Delegations. 
 The Reichsrath of Austria consists of an upper and lower 
 house. The former is composed of : First, Princes of the 
 Imperial House; Second, Heads of noble houses of high 
 hereditary rank; Third, Archbishops and bishops with the 
 rank of princes; Fourth, Li/fe members, nominated by the 
 emperor for distinguished services. The lower house is com- 
 posed of three hundred and fifty-three members elected by all 
 citizens possessing a small property qualification. The em- 
 peror convokes the Reichsrath annually and nominates the 
 presiding officers of each house from among its members. It 
 has general legislative powers on matters of trade, finance, 
 railways, posts, telegraphs, customs, mints, military service, 
 etc. Members of either house may propose new laws, which 
 must receive the sanction of both houses and the emperor. 
 The executive functions for Austria are vested in a Ministerial 
 
GERMANY, AUSTRIA, HUNGARY AND POLAND 511 
 
 Council presided over by the emperor or minister president 
 and made up of ministers of the interior, of reHgion and edu- 
 cation, finance, commerce, agriculture, national delfense, and 
 justice. There are also local diets in the seventeen provinces 
 with jXDwers over local concerns. 
 
 The Hungarian parliament also has an upper and a lower 
 house, known as the House of Magnates and the House of 
 Representatives. The former is made up of three princes of 
 the reigning house having estates in Hungary, thirty-one 
 Archbishops and bishops and 381 high officials and noblemen. 
 The Lower House is made up of representatives chosen for 
 three years by all citizens paying a certain amount of tax and 
 contains about 450 members. There is a similar ministry in 
 charge of the executive department for Hungary as in Austria. 
 Great progress has been made during the last half century in 
 the educational system, but it is still far behind that of Prussia, 
 owing largely to the domination of the priesthood. All child- 
 ren from 6 to 12 are bound to attend the common schools. 
 There is a fair system of secondary schools and there are seven 
 7iniversities at Vienna, Gratz, Innsbruck, Prague, Cracuvv, 
 Lemberg and Pesth. There are also various technical schools. 
 Austria-Hungary has made great progress in its railroads, 
 owned by the state, which are a marked success and afford 
 excellent service at exceptionally low rates. It also owns and 
 operates the telegraphs. The judicial system for Hungary is 
 independent of the administration. The supreme court sits at 
 Buda-Pesth. There is a secondary court of appeals at Moros- 
 Vacarhely in Transylvania. Under these is a system of what 
 are termed royal courts and of circuit courts. 
 
 Authorities 
 Henderson: History of Germany. 
 
 Henry Hallam : History of Europe during the Middle Ages. 
 R. N. Bain : Slavonic Europe. 
 James Fletcher : History of Poland. 
 W. R. Marfill : Poland. 
 Arminius Vambery: Hungary. 
 Encyclopaedia Britannica. 
 Continental Legal History Series, vol. I. 
 
CHAPTER XXI 
 
 Holland and Belgium 
 
 The low wood and marsh land near the lower Rhine were 
 part of the Prankish Empire. In the time of Charlemagne, in 
 accordance with his general policy, it was divided into land- 
 schafts and gaus ruled over 'by dukes and counts; each gau 
 had its chief town, surrounded by a wall, wherein the count 
 administered justice. The gaus were divided into marks or 
 villages, in which a headman acted as judge in minor causes. 
 The sovereignty over this territory alternated between French 
 and German overlords. The northmen also invaded and deso- 
 lated it. The piratical incursions of the vikings and the ex- 
 posed situation of the country caused the people to gather into 
 towns for mutual defense. These became sanctuaries, not 
 merely for freemen, but serfs escaping from the estates of the 
 nobles were also accorded freedom and protection. Trade, 
 manufactures and other characteristics df town life developed, 
 and the people soon built ships and profited from commerce 
 and fisheries. From about A.D. looo the history of Holland 
 begins to take definite form under its counts, whose allegiance 
 shifted according to changing circumstances from the French 
 kings to the German emperors, but with little real control 
 from either. 
 
 William I, who died in 1224, granted charters to several of 
 the towns, securing them in their liberties and providing for a 
 regular administration of justice. Under Floris V the Hol- 
 landers took part in the strife between the French and English 
 kings in aid of the latter, and in return gained valuable trading 
 and fishing privileges by treaty. Marked characteristics df 
 the early society were the independent and commercial spirit 
 of the towns and the resistance of the claims of the nobility 
 by the burghers. The counts from time to time were induced 
 
 512 
 
HOLLAND AND BELGIUM 513 
 
 to grant charters defining the rights of the towns. By about 
 1300 the imperial authority ceased to have any recognition, 
 and Holland took its place as an independent state. Prior to 
 this time for about 400 years the real power had been exer- 
 cised by a vigorous line of counts, who appointed bailiffs over 
 the country districts and schouts as judges in the towns. 
 When matters of great interest to a city arose, the people were 
 summoned into the public square by ringing the great town 
 bell, and then they decided the question by vote. Justice was 
 administered by a man's peers in accordance with the special 
 customs of Franks, Saxons and Frisians. The supplies of the 
 count were furnished by taxation, which fell mainly on the 
 towns and early took the iform of contributions in return for 
 protection, not merely against foreign foes, but against the 
 extortions of the lesser nobility, ajid in their corporate privi- 
 leges against all. The counts usually sided with the burghers 
 against the nobility. In the fourteenth century the towns join- 
 ed the Hanseatic League, from which they were ejected in the 
 fifteenth. During the last half of the fourtenth century civil 
 strife over the succession to the countship and the struggle 
 between the burghers and the nobles, who formed the parties 
 of the Kabbeljaus and Hoeks, the "Cods" and **Hooks," 
 produced a state of continued disorder and much fighting. In 
 1436 Holland passed under the rule of Philip of Burgundy. 
 From this time the charters of the cities and the liberties of 
 the burghers were treated with contempt. Trade continued to 
 thrive under more arbitrary rule, and Holland developed her 
 fisheries and her shipping. In the art of printing and the 
 study of the learning and arts of the ancients the people of 
 the cities of the Netherlands took an early and leading part. 
 The dukes aided in the collection of manuscripts and the 
 founding of libraries and encouraged painters and authors in 
 their work, especially in Flanders and the Brabant, which in 
 these particulars were in advance of Holland. In 1477 on 
 her accession to power the cities secured from the Dutchess 
 Mary her sanction off the "Great Privilege," which affirmed 
 the right of the cities and provinces to hold diets, to approve 
 her choice of a husband and to have a voice in any declaration 
 
514 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of war. It declared that natives alone should hold high office; 
 that no new taxes should be levied without the approval of the 
 estates; established one high court for Holland, Zealand and 
 Friesland; and made Dutch the official language. Though 
 Philip of Burgundy convened the States General in 1464, it 
 was not till after his time that they were allowed real power. 
 In Holland the nobles collectively had but one vote, though all 
 were permitted to sit in the assembly. Each of the large 
 cities was also entitled to one vote. The president of the 
 states, styled the vogt, became an officer of importance. 
 Through marriage of Philip with Joanna of Aragon the sov- 
 ereignty of the Netherlands was inherited by Charles V, king 
 of Spain and German emperor. During his reign and that of 
 his son and successor Philip was carried on that long and 
 desperate struggle for civil and religious liberty by the people 
 of the low countries against the cruel and bigoted Spaniard. 
 Never has tyranny appeared more cold and heartless than that 
 exercised in the name of religion by the bloody Duke of Alva 
 and the murderous tribunals which tried by torture and pun- 
 ished with death the iconclasts and heretics. The charters of 
 the cities and the rights of the States General were disre- 
 garded, and bloody executions by hundreds and by thousands 
 followed. After opposition to the Spaniards had been crushed 
 out in the provinces, the Dutch took their ships and preyed on 
 Spanish commerce. In 1572 the "Water Beggars," as the 
 naval Iforce was termed, seized Briel at the mouth of the 
 Meuse; the struggle on land was renewed and pushed till the 
 Spaniards were driven out of Holland. In 1581 a meeting of 
 the seven northern provinces was held at The Hague, which 
 declared their independence and framed a constitution in ac- 
 cordance with the principles of the "Great Privilege" of the 
 Duchess Mary, with William of Orange as sovereign. Under 
 the able leadership of his son Maurice of Nassau the integrity 
 of the country was preserved, and Holland grew in importance 
 as a naval and commercial power, while the rich provinces of 
 Hainault and Brabant were desolated and almost depopulated 
 as a result of wars and Spanish misrule. Toward the close of 
 the sixteenth century the Dutch seamen began to sail in distant 
 
HOLLAND AND BELGIUM 515 
 
 seas, and in 1602 the Dutch East India Company was iformed. 
 During the progress of the Thirty Years' war, 16 18 to 1648, a 
 separate treaty of peace was concluded with Spain, by which 
 the independence of the provinces was recognized, and Spain 
 abandoned all her claims. 
 
 In 1 65 1 a great assembly of the provinces was held for the 
 purpose of settling the system of government. The stadt- 
 holder, whose office had been made hereditary in the house of 
 Orange, was confirmed as commander of the military forces 
 and exclusive head of the state. The legislative power was 
 vested in the States General, made up of deputies numbering 
 at times as many as 800. There was a permanent council df 
 state and a chamber of accounts. Each province had its own 
 stadtholder and estates. Each town had its chief minister and 
 each great city a senate ; that of Amsterdam containing thirty- 
 six burghers, who were charged with the maintenance of 
 order, the collection of taxes, and the administration of jus- 
 tice. At first the senate was elected for life by the whole body 
 of freemen, but from the sixteenth century vacancies were 
 filled by cooptation, and it became a close oligarchy. Other 
 towns were similarly organized. The senate named the depu- 
 ties to the States General. The right of making war and 
 peace, concluding alliances, coining money and levying taxes, 
 was vested in the States General. Though in the defense of 
 their liberties and their country the Dutch had many long and 
 desperate wars, their foreign fKDlicy was never aggressive, 
 except for the extension of their trade. In this they met with 
 great success and were able to obtain trade privileges in the 
 east not accorded to other countries. Their greatest acquisi- 
 tion was of the rich island of Java, where they rule over a 
 population many times that of Holland with very little friction 
 with the natives. On the sea and in manufactures and trade 
 the Dutch continued to gain their peaceful victories, and also 
 carried on desperate struggles with Spain and England for 
 naval supremacy. 
 
 No marked change in the organization of the state took 
 place till the breaking out of the French Revolution. In 1775 
 a new constitution was formed, sweeping away the ancient 
 
5i6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 system and establishing in its place an elective representative 
 government, but change after change followed in quick suc- 
 cession. In 1805 Bonaparte imposed a new constitution and 
 a ruler, and in the next year made his brother king oif it as a 
 dependency of France. In 18 10 he annexed it as a part of the 
 empire. After the overthrow of Napoleon an assembly of 
 notables met and recalled the prince of Orange, who had taken 
 refuge in England, and chose him king under the title of 
 William I. By the treaty of Paris Belgium was united to 
 Holland under the hereditary sovereignty of the house of 
 Orange. The king was given full executive powers and the 
 initiative in proposing laws. He also appointed the council of 
 state. The States General, composed of two chambers, was 
 the legislative body, and similar representative assemblies were 
 provided ifor each province. The union of Holland and Bel- 
 gium was not the result of any popular movement, but was 
 an incident of the settlement of the balance of power by the 
 leading states of Europe at the conclusion of the Napoleonic 
 wars. Belgium had never had any well defined national exis- 
 tence, having been border and disputed territory over which 
 the rulers of France, Germany, Spain and Burgundy extended 
 or were forced to yield their sovereignty according to the 
 varying fortunes of war and diplomacy. There was never a 
 close ^bond of sympathy between the Belgians and Dutch, the 
 former being more closely allied with the French and the latter 
 with the Germans. In 1830 a revolt broke out at Brussels, 
 as a result of which there was a conflict between Holland and 
 the people of Belgium. A cessation olf hostilities resulted 
 from the mediation of the great powers and a convention of 
 delegates chosen from the different provinces of Belgium as- 
 sembled at Brussels, which declared for independence and a 
 constitutional hereditary monarchy. In June, 1831, Prince 
 Leopold of Saxe-Coburg was chosen king, under the condi- 
 tion that hie would accept the constitution and swear to main- 
 tain the national independence and territorial integrity, which 
 he did. Further conflicts took place between the two coun- 
 tries, and in 1832 France and England proceeded to enforce 
 submission by Holland to the determination of the powers by 
 
HOLLAND AND BELGIUM 517 
 
 force of arms. In May, 1833, after much negotiation, a 
 treaty was concluded providing for the settlement oif bounda- 
 ries and the separation of the two countries. 
 
 The present constitution of Holland is that established in 
 1 81 4 as revised in 1848. The crown is hereditary by primo- 
 geniture in both male and female lines. The king is the 
 executive head with power to declare war and make peace. 
 He appoints the ministers, of whom there are eight : namely, of 
 the interior, the watersaat (including trade and industry, rail- 
 ways, post offices, etc.) of justice, war, finance, marine, the 
 colonies and foreign affairs. Though appointed by the king 
 the ministers are accountable to the country for the conduct 
 of affairs. The law-making power is vested in the king and 
 States General, composed of two houses. The members of the 
 upper house are chosen by the several provinces from those 
 paying the largest direct taxes and contains thirty-nine mem- 
 bers holding for terms oif nine years, one-third of the members 
 being chosen every three years. The members of the lower 
 house are chosen by electoral districts by all citizens paying 
 the requisite tax, varying from twenty to one hundred and 
 sixty guilders. One member is chosen for every forty-five 
 thousand people. There is also a council of state, appointed 
 by the king, to which all legislation is submitted by the king 
 before being presented to the states, and all enactments by 
 the States General are submitted to the council before approval 
 by the king. In each province there are similar assemblies 
 having charge of local matters, made up of two houses chosen 
 by the same electors. The presidents of these assemblies are 
 appointed by the king. At the head of every commune is a 
 communal council chosen by the people. The president of 
 the council, the burgomaster, is appointed by the king for six 
 years. There are eleven provinces and about 1130 communes. 
 The administration of justice is by a system of courts, at the 
 head of which is the Supreme Court sitting at The Hague, 
 with inferior local courts in each province and commune. 
 
 The people of Holland enjoy complete religious liberty, 
 freedom of speech, of association, and the right of trial by jury. 
 No country furnishes a better illustration of the possibilities 
 
5i8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of overcoming natural difficulties by combined effort and of 
 turning adverse natural conditions to advantage than Holland. 
 As formed by nature the district now included in the kingdom 
 was exposed to inundation from the sea; much of it so low 
 and marshy as to be unfit ifor cultivation and much actually 
 below sea level. The soil was not of exceptional fertility in 
 general, and much of it was sandy and poor. By a system of 
 dykes more than 1550 miles in length, some of which are now 
 utilized as beds for railways, not only have the low marsh 
 lands been protected and reclaimed, but large districts have 
 been gained from the sea and converted into fruitful fields. 
 Though well supplied with rivers, the interior communication 
 was early supplemented by an extensive system of canals. 
 These and the flooding of lowlands by cutting the dykes have 
 in times past materially affected military operations and been 
 utilized in the defense of the country. From the earliest times 
 the people have found it necessary to unite their efforts in 
 overcoming natural iforces as well as in fighting other people. 
 This induced a spirit of association and also led to a perception 
 of the essential principles to be observed in combining for 
 common enterprises and sharing the benefits. The people of 
 Holland were among the leaders in modern times in the study 
 and elaboration of legal principles. Grotius, 1583 to 1645, ^s 
 still regarded as a leading authority on international law. In 
 the controversies with Charles and Philip of Spain the Hol- 
 landers argued most tenaciously for the observance of their 
 charters and the protection of the laws, as well as for religious 
 liberty, though in the condemnation of Barneveldt and Gro- 
 tius and the execution of the former, as well as in many other 
 judicial outrages, they showed that the spirit of cruelty and 
 intolerance was not confined to one creed or sect. Still 
 throughout all the bloody persecutions there was a marked 
 disposition to proceed by established forms and to execute 
 only after the forms of law had been complied with. 
 
 Combined effort was also necessary in carrying forward 
 commercial enterprises, and the Dutch were among the earliest 
 to take full advantage of the opening of trade with distant 
 lands. By negotiations and a generally pacific policy they 
 
HOLLAND AND BELGIUM 519 
 
 established trading posts in the East and West Indies, Asia 
 and America, which afforded their merchants advantages, 
 from which they made great gains and took leading rank in 
 the commercial world. The wars of Holland have with but 
 rare exceptions been purely defensive. In these the people 
 have exhibited a degree of stubborn bravery and of brilliant 
 daring never surpassed by any people. It has been in all its 
 histoiy mainly a collection of towns, and the democratic spirit, 
 engendered by close contact of many people engaged in indus- 
 trial pursuits, has never been successifully crushed by any 
 ruling power. On the other hand the aristocratic spirit has 
 grown from generation to generation among the families pos- 
 sessed of great wealth, and the present constitution with its 
 property qualification for voters shows the effects of this 
 tendency. Commercial and industrial pursuits necessitate a 
 degree of education not found among the peasant communi- 
 ties of Europe prior to the eighteenth century, and the people 
 of Holland of the fifteenth, sixteenth and seventeenth cen- 
 turies enjoyed as large a measure of education as any in 
 Europe. The extent of the domination of the Dutch is not 
 fully measured by their territorial possessions. They early 
 learned the mastery gained by the investment of money and 
 the acquisition of legal titles to property, and Dutch capital 
 has been placed in America and elsewhere in such manner as 
 to still further extend the power and influence of her capital- 
 ists and financiers. In perception and utilization of the advan- 
 tages of combination and mutual help in peaceful enterprises 
 no modern people and perhaps none of any age have excelled 
 them. The educational system provides for general primary 
 instruction but is not so thorough as that of Prussia. It is 
 being improved. There are four universities of high rank, at 
 Utrecht, Leyden, Groningen, and Amsterdam. 
 
 The constitution of Belgium adopted in 1831 exhibits more 
 marks of modern influences than that of Holland. The latter 
 has its traditions and survivals of ancient organizations, while 
 the former is thoroughly modern. 
 
 The first title relates to the boundaries and division into 
 provinces. The second is much like the bills of rights in the 
 
520 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 constitutions of the American states, and contains among 
 others the following- important provisions : 
 
 Art. 6. 'In the State there shall be no distinction of order. 
 All Belgians are equal before the law ; they alone are admitted 
 to civil and military employments, with such exceptions as 
 may be established by law for particular cases." 
 
 Art. 7. "Individual liberty is guaranteed. No one can be 
 prosecuted, except in the cases specified by law and in the 
 form which it prescribes. Save when taken in the act, no one 
 shall be arrested except by virtue of an order issued by a 
 judge. It shall be shown at the time of the arrest or not later 
 than twenty-four hours thereafter." 
 
 Art. 8. "No one shall be deprived against his will of the 
 judge whom the law assigns him." 
 
 Art. 9. "No penalty shall be established or enforced except 
 by law." 
 
 Art. 10. "The home is inviolable. No search shall be made 
 except in cases provided for by law and in the form which it 
 prescribes." 
 
 Art. II. "No one shall be deprived of his property except 
 for public use and then only in the cases and in the manner 
 provided for by law ; and a just indemnity, to be ascertained 
 beforehand, shall be paid." 
 
 Art. 14. "The freedom of religions, their public exercise, as 
 well as the liberty of expressing their opinions on every mat- 
 ter, are guaranteed; reserving the right of repressing crimes 
 committed in the exercise of these liberties." 
 
 Art. 15. "No one shall be compelled to observe, in any man- 
 ner whatsoever, the rites and ceremonies of any (form of re- 
 ligion, nor be required to observe days of rest." 
 
 Art. 17. "Public education shall be free, every preventive 
 measure is prohibited. The repression of crime shall be regu- 
 lated by law. Public instruction given at the expense of the 
 state shall also be regulated by law." 
 
 Art. 18. "The press is free, no censorship shall ever be es- 
 tablished, nor can writers, editors or printers be required to 
 give bonds. When the author is known and resides in Bel- 
 gium, the editor, printer or news agent cannot be prosecuted." 
 
HOLLAND AND BELGIUM 521 
 
 Art. 19. "All Belgians have the right to assemble peaceably 
 and without arms, conforming themselves to the laws which 
 may regulate the exercise of this right, but without being 
 obliged to obtain permission beforehand. This regulation 
 does not apply to open air meetings, which are entirely under 
 police regulation." 
 
 Art. 20. ''Belgians shall have the right to form associa- 
 tions; this right cannot be suppressed by any preventive 
 measure." 
 
 Art. 22. "The secrecy of the mails shall be inviolable. The 
 law shall determine who are the responsible agents in the vio- 
 lation of the secrecy of the mails." 
 
 Art. 24. "No previous authorization is necessary to begin 
 suits against public officials for the acts of their administra- 
 tion, with such exceptions as may be made regarding the 
 Ministers." 
 
 Title three distributes the governmental powers. 
 
 Art. 25. "All powers emanate from the nation. They shall 
 be exercised in the manner established by the constitution." 
 
 Art. 26. "The legislative power shall be exercised collect- 
 ively by the king, the House of Representatives and the 
 Senate." 
 
 Art. 2y. "The initiative shall belong to each one of the 
 three branches of the legislative power. But all laws relative 
 to the receipts or expenses of the state, or the contingent of 
 the army must be first voted by the House of Representatives." 
 
 Art. 28. "The interpretation of the laws in an authorita- 
 tive manner shall belong only to the legislative power." 
 
 Art. 29. "To the king belong executive powers within the 
 limits prescribed by the constitution." 
 
 Art. 30. "The judicial power shall be exercised by the 
 courts and tribunals." 
 
 Sessions of the Houses are required to be public, subject to 
 a right to resolve themselves into secret committees. Each 
 house judges of the returns and qualifications of its members. 
 Appointment by the government to a salaried position vacates 
 the member's seat. A majority constitutes a quorum. An 
 absolute majority is required to pass a law, and the vote must 
 be taken by roll call. Members are privileged from arrest. 
 
522 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Art. 47. 'The House olf Representatives shall be composed 
 of Deputies elected directly by those citizens paying the census 
 prescribed by the electoral law, which shall not exceed one 
 hundred florins of direct tax nor be below twenty florins." 
 
 The number of deputies shall not exceed one for 40,000 
 inhabitants and to be eligible one must be a Belgian twenty- 
 five years old. The term of office is four years and one-half 
 are elected every two years. Members have a monthly salary 
 of two hundred florins, except that those who reside in the 
 city where the session is held get no salary. The senate is 
 composed of half the number of the House, elected for eight 
 years, one-half every four years, but entirely renewed in case 
 olf dissolution. Senators must be Belgians forty years old and 
 pay at least 1000 florins direct taxes, including licenses in 
 Belgium. They receive no salary. 
 
 The constitutional powers of the king are conferred on 
 Leopold of Saxe-Coburg and made hereditary in the male line 
 by primogeniture. In case of failure of such heirs the king 
 may name his successor, with the consent of the two houses. 
 The king cannot be chief of another state without the assent 
 of the two houses. 
 
 Art. 63. 'The person of the king shall be inviolable, his 
 ministers shall be responsible." 
 
 Art. 64. *'No act of the king shall have any effect, if it be 
 not countersigned by a Minister who, by this act alone, makes 
 himself responsible." "The king appoints ministers, confers 
 grades in the army, and appoints officers of the general ad- 
 ministration and foreign affairs, and such others as are au- 
 thorized by law. He has no power to suspend the laws. The 
 king commands the army and navy, declares war, and makes 
 treaties. Treaties of commerce or imposing obligations on 
 the Belgians must be ratified by both houses." ''No cession, 
 no exchange, no addition of territory can take place except by 
 law." "The houses shall be in session each year, for at least 
 forty days," and the king may convoke them on extraordinary 
 occasions and may dissolve them simultaneously or separately. 
 He may remit or reduce sentences, except those against the 
 ministers. He may confer titles of nobility. 
 
HOLLAND AND BELGIUM 523 
 
 Art. 68. "No one shall be a Minister who is not a Belgian 
 by birth or who has not received supreme naturalization." 
 
 Art. yj. "The law shall fix the civil list for the duration of 
 each reign." 
 
 Art. 78. "The king shall have no other powers than those 
 w^iich the constitution formally confers upon him and the par- 
 ticular laws passed in pursuance of the same constitution." 
 
 In case of vacancy of the throne the ministers exercise the 
 kings' powers, and the two houses provide a regency during 
 the minority or disability of the king. 
 
 Art. 87. ''No member of the Royal Family shall be a 
 minister." 
 
 Art. 88. "The Ministers shall have a deliberative voice in 
 one or the other house only when they are members thereof. 
 They shall have free access to each of the houses and must be 
 heard when they demand it. The houses may require the 
 presence of the Ministers." 
 
 Art. 89. "In no case shall the verbal order or writ of the 
 king relieve a minister from his responsibility." 
 
 Impeachments of ministers are tried before both houses in 
 joint session. Articles 92 to 107 inclusive relate to Judicial 
 Power. 
 
 Art. 94. "No tribunal nor civil court shall be established 
 except by law. No extraordinary commissions or tribunals 
 shall be established under any name whatsoever." 
 
 One Court of Appeals for all Belgium is established with 
 no original jurisdiction except in the trial of ministers. Court 
 proceedings must be public, except when dangerous to public 
 order or morals and formally decided so to be. Jury trials 
 are required in all criminal matters. All judicial officers are 
 named directly by the king. Judges are appointed ifor life 
 with salaries fixed by law, and prohibited from accepting any 
 other salaried appointment. The powers and procedure of 
 all courts civil and military are subject to regulation by law. 
 Provincial and local institutions are regulated by law on the 
 principles of direct election, local self-government in local 
 afifairs, publicity of council meetings, budgets and accounts. 
 
 Art. no. "No tax for the benefit of the state shall be 
 established except by law." 
 
524 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Art. III. "AH state taxes shall be voted annually." 
 
 A court of accounts, charged with the examination of the 
 accounts of the general administration, with members named 
 by the House of Representatives is established. Title V relates 
 to the army and requires all matters relating to its numbers, 
 method of recruiting and organization to be regulated by law. 
 
 Art. 128. "Every foreigner on Belgian territory shall enjoy 
 the protection accorded to persons and property, with such 
 exceptions as may be established by the law." 
 
 Art. 130. "The constitution can neither be suspended in 
 whole or in part." The constitution may be revised after a 
 declaration that there is need oif revision and dissolution of 
 the houses by a two-thirds vote of newly elected houses. This 
 constitution is clearly the most advanced of all those retaining 
 a king as head of the state. In practice time has demonstrated 
 the wisdom of its provisions, and Belgium with the most dense 
 population of any European country enjoyed a high degree of 
 prosperity and had kept clear of destructive wars until invaded 
 by the Germans in August, 191 4. 
 
 In its provision requiring authoritative interpretations of 
 the law to be made only by the law-making power, it is in ad- 
 vance of the American constitutions. 
 
 In each province there is a governor named by the king and 
 a provincial council elected by the people. The affairs of the 
 communes are also conducted by councils chosen by the people 
 for terms of six years and a burgomaster appointed by the 
 king from among the members of the council. There is a 
 general primary school system, carried on at the expense otf 
 the communes, and secondary schools, part supported by the 
 communes and others by the government. There are four 
 universities, at Ghent, Liege, Brussels and Louvain. Besides 
 these there are technical schools of high rank. In its benevo- 
 lent and charitable institutions Belgium takes high rank and 
 maintains many of various classes. 
 
 Much attention is paid to the needs of the working classes 
 and to organizations designed to assist them. There are not 
 only savings banks and mutual assistance societies, but charity 
 workshops are provided at Ghent, Liege and other towns. 
 
HOLLAND AND BELGIUM 525 
 
 where indigent laboring men out of employment are relieved. 
 These are not only means of temporary relief to the necessi- 
 tous, but are designed as schools of instruction and to encour- 
 age industry among those who otherwise might become 
 criminals or beggars. There are also manufacturing schools 
 for girls, where they are taught to make fabrics, etc. Liberal 
 provisions are made for the care of the insane, diseased and 
 infirm and for temporary relielf to the indigent. 
 
 The judicial system consists of a court of cassation at Brus- 
 sels, composed of a president general, a president of the 
 chamber and fifteen councillors. It has power to revise the 
 action of inferior courts and reverse their decisions for errors 
 of law. It is divided into two chambers, one for civil and the 
 other for criminal causes. There are three courts of appeal, 
 one each at Brussels, Ghent and Liege. In the capital of each 
 13rovince is a court of assize, composed of a councillor deputed 
 from one of the courts of appeals and two judges chosen from 
 among the presidents and judges of the primary tribunal 
 where the court is held. This court has jurisdiction of crimes 
 and the trial is by a jury of twelve, chosen from a panel of 
 thirty by lot. In each arrondissement is a court of primary 
 jurisdiction' of civil causes and misdemeanors. The number 
 of judges in these varies from three to ten. There are also 
 tribunals of commerce in the principal towns. Appeals are 
 allowed in causes involving 2000 ifrancs or more. In the 
 manufacturing towns there are councils of prud-hommes, 
 composed of master tradesmen and workmen, who decide dis- 
 putes between masters and workmen. All judges are appoint- 
 ed by the king for life and are incapable of holding any other 
 ofBce. The interests of the state are represented by advocates 
 and procurators appointed by the crown. After the settlement 
 of its disputes with Holland Belgium entered on a prosperous 
 and peaceful career. It passed through the period of 1848, 
 Avhich shook so many European states, with but slight dis- 
 turbance, and as a mining and manufacturing state has en- 
 joyed a good degree of prosperity. 
 
 Great dissatisfaction has been manifested recently over the 
 provisions of the electoral law which gives to Belgians over 
 
526 EVOLUTION OF GOVERNMENTS AND L.\WS 
 
 thirty-five years of age if married or widowers paying five 
 fratics direct tax two votes each and to those having certain 
 other property quahfications, official status or university diplo- 
 mas three votes each. By this increased voting power a min- 
 ority of the voters is given a majority of the votes. 
 
 The future of Belgium at this time appears to depend on 
 the outcome of the war now raging in Europe. Though in no 
 manner responsible for it the people are suffering most of any 
 from the war, and the land is again drenched with blood be- 
 cause no efficient measures have been taken by the great na- 
 tions to settle their controversies by reason. 
 
CHAPTER XXII 
 
 Switzerland 
 
 The territory included in modern Switzerland passed suc- 
 cessively under the rule of Romans, Franks and Burgundians, 
 without the development of any local national life. About 
 A.D. 406 or 407 the Almanni took possession of northern 
 Helvetia, which their descendants still occupy. A little later 
 the Burgundians settled about Lake Geneva and soon acquired 
 mastery over southern Helvetia. The ancient Celts and Ro- 
 mans were not exterminated, but remained subject to the in- 
 vading tribes. The Alemanni carried with them the Germanic 
 customs of land tenure, using pasture and waste lands in com- 
 mon, and of determining all public matters in an assembly of 
 the freemen. The rule of Charlemagne was extended over all 
 Helvetia, and feudalism developed there substantially as else- 
 where throughout western Europe. 
 
 The history of Switzerland, as well as the romantic legends 
 connected with its political birth, are closely connected with 
 the rise of the House of Hapsburg, whose early seat was in 
 the modern canton of Aargau, with estates in the cantons off 
 Luzern, Schwyz and Unterwalden. From ancient times the 
 Germanic tribes were accustomed to act in concert in the asser- 
 tion of their rights, and the feudal system did not have the 
 effect of obliterating all such organizations in the mountain 
 districts of Switzerland. Prior to the controversy with the 
 Hapsburgs we find the people of Schwyz and of separate parts 
 of Unterwalden organized into Markgenossenschaften and 
 accustomed to meet and confer with reference to their common 
 interests. In 123 1 Henry VII issued a charter to the men of 
 Uri, making them immediate vassals of the empire, promising 
 them his protection, and setting them 'free from Count Rudolf 
 of Hapsburg. In 1240 a similar charter was granted by 
 Frederick II to the men of Schwyz the original of which is 
 still preserved and reads : 
 
 527 
 
528 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ''Having received letters and messengers from you, to prove 
 and make known your conversion and submission to us, we 
 accede to your express desire with gracious and affectionate 
 good will ; we praise your submission and loyalty not a little 
 in that you have shown the zeal which you have always had 
 for us and the empire, by taking protection under our wings 
 and those of the empire, as you are bound to do, being freemen 
 who must turn to us and the empire alone. Since therefore 
 you have chosen our rule and that of the empire of your own 
 free will, we receive you loyally with open arms and respond 
 to your sincere affection with our single minded favor and 
 good will, by taking you under our special protection and that 
 of the empire, so that we will never allow you to be alienated 
 or withdrawn irom our sovereign rule and that of the empire." 
 
 This charter was not recognized by the Hapsburgs as taking 
 away their rights, and it it difficult to see how the Emperor 
 could rightfully cut the feudal bond, which already existed 
 between Rudolph and his vassals. In the controversy between 
 the Emperor Frederick and the Pope the people of Schwyz 
 and Uri supported the Emperor, while Rudolph supported the 
 Pope. Frederick II was excommunicated and deposed. 
 Count Rudolph, during the conflict, called in the aid of the 
 Pope to restore his vassals to their allegiance, and built the 
 fortress of New Hapsburg near Lake Luzern, from which 
 his rights were enforced. 
 
 In 1273 the fief of Schwyz passed from the Laufenburg 
 line of the house of Hapsburg to that of Austria, and in the 
 same year Rudolph was chosen emperor. By this chance the 
 imperial sovereignty, assumed by the charter of Frederick, 
 became united in the person of Rudolph with that of the house 
 of Hapsburg. Rudolph governed it as an immediate posses- 
 sion, and it therefore ranked as ''unmittelhar." During his 
 reign an edict was issued, exempting the people from answer- 
 ing a summons to appear before any tribunal outside the val- 
 ley, and providing that they should be answerable only to the 
 emperor, his sons or the judge of the valley. Unterwalden 
 was divided into a number of marks and contained the mon- 
 astery of Engelberg and many free peasants. Rudolph died 
 
SWITZERLAND 529 
 
 July 15, 1 29 1. On August i of the same year the three forest 
 states concluded a league and executed their first articles of 
 confederation, which, written in Latin on parchment, are 
 still preserved. This document is of interest, not only as the 
 work of the founders of the Swiss confederacy, but in the 
 light it throws on the state of society and the conceptions of 
 law and social order then entertained by the people. The fol- 
 lowing is a translation : 
 
 'Tn the name of God, Amen — 
 Honor and the public weal are promoted when leagues are 
 concluded for the proper establishment of quiet and peace. 
 
 I. Therefore know all men, that the people of the valley of 
 Uri, the democracy of the valley of Schwyz and the community 
 of the mountaineers of the Lower Valley, seeing the malice of 
 the age, in order that they may better defend themselves and 
 their own and better preserve them in proper condition, have 
 promised in good ffaith to assist each other with aid, with 
 every counsel and every favor, with person and goods, within 
 the valleys and without, with might and main, against one and 
 all who may inflict on any of them any violence, molestation 
 or injury or may plot any evil against their persons or goods. 
 2. And in every case each community has promised to succor 
 the other when necessary, at its own expense, as far as needed 
 in order to withstand the attacks of evil-doers and to avenge 
 injuries, to this end they have sworn a bodily oath to keep this 
 without guile and to renew by these presents the ancient 
 form of the league, also confirmed by an oath. 3. Yet in 
 such a manner that every man, according to his rank, shall 
 obey and serve his overlord as it behooves him. 4. We have 
 also promised, decreed and ordained in common council and 
 by unanimous consent, that we will accept or receive no judge 
 in the aforesaid valleys who shall have obtained his oflice for 
 any price or for money in any way whatever, or who shall not 
 be a native or a resident with us. 5. But if dissension shall 
 arise between any of the confederates, the most prudent 
 among the confederates shall come forth to settle the difficulty 
 between the parties as shall seem right to them ; and whichever 
 party rejects their verdict shall be an adversary to the other 
 
530 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 confederates. 6. Furthermore, as has been estabHshed be- 
 tween them that he who deHberately kills another without 
 provocation, shall if caught, lose his life, as his wicked guilt 
 requires, unless he be -able to prove his innocence of said 
 crime; and if perchance he escape, let him never return. 
 Counsellors and defenders of said criminal shall be banished 
 from the valleys, until they be expressly recalled by the con- 
 federates. 7. But if any one of the confederates by day or in 
 the silence of the night, shall maliciously injure another by 
 fire, he shall never be considered a compatriot. 8. If any man 
 protect and defend the said criminal he shall render satisfac- 
 tion to the injured person. 9. Furthermore if any one of the 
 con/federates shall spoil another of his goods or injure him 
 in any way, the goods of the guilty one, if recovered within 
 the valley, shall be seized in order to pay damages to the in- 
 jured person according to justice. 10. Furthermore, no man 
 shall seize anothers goods for debt unless he be evidently his 
 debtor or surety, and this shall only be done with the special 
 permission of his judge. Moreover every man shall obey his 
 judge and if necessary, must himself indicate the judge in the 
 valley, before whom he ought properly to appear. 11. And if 
 anyone rebels against a verdict and in consequence of his ob- 
 stinacy, any one of the confederates is injured, all the con- 
 federates are bound to compel the contumacious person to 
 give satisfaction. 12. But if war or discord arise amongst 
 any of the conlfederates, and one party of the disputants refuse 
 to accept justice or satisfaction, the confederates are bound 
 to defend the other party. 13. The above written statutes, 
 decreed for the common weal and health, shall endure for- 
 ever, God willing. In testimony of which at the request of 
 the aforesaid parties, the present instrument has been drawn 
 up and confirmed with the seal of the aforesaid three com- 
 munities and valleys. 
 
 Done Anno Domini M C C. L XXXX Primo. in the begin- 
 ning of the month of August." 
 
 A little more than two months later Uri and Schwyz en- 
 tered into a separate alliance with Zurich for three years. In 
 1294 an assembly of the men of Schwyz was held, at which it 
 
SWITZERLAND 53i 
 
 was resolved that no one should be permitted to sell or give 
 land to monasteries in the valley or to strangers outside, under 
 heavy penalty, and requiring the monasteries and foreign 
 owners to pay taxes on their holdings the same as residents, 
 and not impose them on their tenants. During the reign of 
 Albrecht I the cantons were governed by native Landaman- 
 ncn. The critical investigations of historians have cruelly 
 swept away the basis for the poetic tales of Tell and his com- 
 patriots and the period when Swiss liberty is pictured as taking 
 birth. In place of these thrilling tales it is said that the period 
 of the reign of Albrecht I was uneventful, as far as the Swiss 
 cantons are concerned. Albrecht refused to confirm the 
 charters, but those of Uri and Schwyz were confirmed by 
 Henry VII, and a charter was also granted to Unterwalden. 
 These charters were an assertion by Henry of Luxemburg, 
 as emperor, of sovereignty in opposition to the claims oif the 
 Hapsburgs. The question at issue was not whether the forest 
 states were free or subject to the Hapsburgs but whether 
 they were ''mittelhar" i.e. subject to the Hapsburg as Haps- 
 burgs or ''immittelhar" and subject only to the emperor 
 whether he were a Hapsburg or other prince. 
 
 In January, 13 14 a band of Schwyzers attacked the Abbey 
 of Einsiedeln, which was under the protection of the Haps- 
 burgs, and after damaging much property took aw^ay the 
 monks as prisoners and drove off the cattle. This raid re- 
 sulted from a controversy over the use of lands claimed by 
 both parties. On Nov. 15, 131 5, a conflict occurred at Mor- 
 garten between the confederates and a force under Duke 
 Leopold, in which the latter sustained a crushing defeat. The 
 battle was remarkable in the fact that a body of mounted and 
 armored knights were defeated by peasants on ifoot. On Dec. 
 9, 1 31 5, a meeting was held and the league of the cantons 
 renewed on the same lines, with the additional provisions that : 
 ''those lords or that lord who shall attack one of the Lands 
 with violence, or force unjust exactions; such a one or such 
 men shall not be served as long as they have not given satis- 
 faction to the Lands," and also ''We have also agreed that 
 none of the Lands nor any among the confederates (Eidgenos- 
 
532 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 sen), shall give an oath or pledge to a foreigner without the 
 advice of the other Lands or Confederates." Three years 
 later the Duke of Austria renounced all sovereign rights over 
 the states, but retained jurisdiction over his estates, and peace 
 was concluded. On Nov. 7, 1332, a perpetual league was con- 
 cluded between the three forest cantons and Lucern. This 
 compact recognized the rights of Austria in Lucern, and of 
 the Emperor over Uri, Schwyz and Unterwalden, but pro- 
 vided for mutual assistance in case oif aggression from any 
 quarter and for arbitration of controversies among the con- 
 federates. Lucern had been under ecclesiastical rule and had 
 also obtained a charter. In 1291 Rudolph of Hapsburg 
 bought for his sons all the possessions of the Abbey of Mor- 
 bach. Through this purchase Lucern passed to the Hapsburgs, 
 and in 1315 the citizens had been compelled to take part in 
 the battle of Morgaten against the Forest Cantons. 
 
 At this time Zurich was a city of considerable importance 
 and classed as a free city. The form of the city government 
 was, however, oligarchical. The people were divided into 
 classes as nobles, free burghers and working men. The gov- 
 erning body was a council composed of thirty-six burghers, 
 divided into three groups olf twelve each, a group governing 
 one third of a year. The working class had no vote nor share 
 in the city government. In 1336 there was an uprising against 
 the abuses of the council, led by Rudolph Brun, who, though 
 of a leading family and a member of the council, became the 
 champion of the common people. A new charter was formed 
 called the "First Sworn Brief,'' which provided that the whole 
 population should swear to serve and obey the Biir germeister 
 in all things, without however, disparagement of the rights 
 of the Emperor and the two church establishments of the 
 city. The Burgermeister must swear to protect all citizens to 
 the best of his ability without distinction of rich or poor. A 
 new council was to be elected by two classes, the first included 
 the nobles and burghers who lived on their incomes, or were 
 in business as merchants, woolen-drapers, money changers, 
 goldsmiths and salt dealers. These together formed an as- 
 sociation, called the Konstaffei. The workingmen made up 
 
SWITZERLAND 533 
 
 the second class and were grouped into thirteen guilds ac- 
 cording to occupation. They were organized into companies 
 and drilled for the defense of the city. Over each was a 
 guildmaster, elected semiannually by the guild, who became 
 ex-officio a member of the council. The Konstaffel chose an 
 equal number, making the full council twenty-six in number. 
 On important occasions all the citizens were assembled for 
 consultation. The Bur germeister was chosen for life. Fol- 
 lowing this change of organization there was trouble with 
 the Count of Rappersweil and his followers, and on Feb. 23, 
 1350, an attack was made on Zurich under the lead of the son 
 of a Count of Rappersweil who had been slain in a fight at 
 Grinau. The attempted surprise resulted in the capture of 
 the young count and his principal followers, thirty-five of 
 whom were barbarously executed. Brun, who had been chosen 
 Bur germeister, took Rappersweil, destroyed the castle and 
 devastated the possessions otf the Hapsburgs about the head 
 of the lake. As a result Zurich was confronted with the 
 forces of Austria and needed help. On May i, 1351, a per- 
 petual league was concluded between Zurich, Lucern, Uriy 
 Schwyz and Unterwalden, each promising mutual assistance, 
 but allowing the members to form separate alliances, and 
 pledging the forest states to help maintain the existing form 
 of government in Zurich, if requested. War followed be- 
 tween the Austrian duke and the confederates. On June 
 1352 Glarus joined the confederacy, Lucern not becoming a 
 party to the compact. On June 27 Zug, which had been 
 taken possession of by the confederates, also joined the league. 
 After an indecisive campaign peace was concluded with Aus- 
 tria, by which the Duke retained Glarus and Zug. 
 
 The city of Bern was also an unmittelhar, free city, claim- 
 ing charter rights under what is called the Goldcne Handveste, 
 claimed to have been granted by Frederick II in 12 18, allow- 
 ing immunity from imperial taxation, except an annual home- 
 stead tax, with the privilege of electing all its municipal 
 officers, exemption from military service so far away that 
 they could not return at night, and containing many other 
 regulations of municipal affairs. In 1295 certain reforms 
 
534 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 were made. In addition to the Schiiltheiss and council of 
 twelve, a board of sixteen was chosen from the four wards 
 of the city, which was empowered to elect a common council 
 of 200. Artisans, theretofore unrepresented, were eligible to 
 the board and council. Guilds were forbidden. Prior to this 
 time Bern had vacillated in its allegiance between Savoy and 
 Hapsburg. In 1323 Bern sought and gained the alliance of 
 the Forest States and in the following years waged war and 
 took a number of places in the neighboring district. In June 
 1339 the battle of Laupen was fought and won by the con- 
 federates, and in 1342 peace was concluded, which was follow- 
 ed in 1355 by the admission of Bern into the Confederation. 
 A document similar to the former ones was drawn up, 
 but not making a close league between the cities. Charles IV, 
 having quarreled with Rudolph IV of Austria, confirmed the 
 charters and leagues of the States, and in 1364 the latter re- 
 covered Zug from Austria. In 1375 there was an invasion of 
 a large army of mercenaries under Ingram de Courcy, which 
 entered Argau and laid waste the country. The attack was 
 directed rather against Austria than the Swiss but, as usual, 
 innocent people rather than the hostile ruler suffered. The 
 people, however, rose, surprised and de/feated a large detach- 
 ment and soon drove the remainder from the country. This 
 was called the Gugler invasion. After a brief interval of 
 peace quarrels were renewed with Austria. All the members 
 of the league except the Forest Cantons and Glarus joined 
 the Swabian Confederacy. Lucern refused to pay customs 
 to the Austrian bailiff and received and protected peasants 
 from the ducal estates. The bailiffs seat at Rothenburg was 
 destroyed, Zug attacked the castle of St. Andreas, Zurich 
 marched against Rappersweil and the men of Schwyz took 
 Einsiedeln. A summons was sent to the Swabian cities, to 
 which they made scanty response. 
 
 In June 1386 LeopK)ld III, who had succeeded to the western 
 possessions of the Hapsburgs, organized an expedition to 
 crush the confederacy. Many noblemen of the neighboring 
 country came to his aid, and he also hired several bands of 
 mercenaries. With a force df 6,000, including many armored 
 
SWITZERLAND 535 
 
 knights, he made a feint of an attack on Zurich, but it was his 
 purpose to strike Lucern as the heart of the Confederacy. 
 With overweening confidence his forces moved along, un- 
 prepared for an attack, when on July 9, 1386 they were met 
 at Sempach by about 1,600 men of Lucern and the Forest 
 States. The battle which ensued, though not involving great 
 numbers, is one of the most nota;ble in history from the fact 
 that a very inferior force of peasants and burghers, fighting 
 without armor, defeated so large a iforce of armored knights 
 and professional soldiers. Leopold was killed and his army 
 completely routed. Some circumstances favored the Confed- 
 erates. Their attack was a surprise, on ground unfavorable 
 to horses, so that the knights were forced to dismount, and, 
 the heat being intense, their armor was such a serious encum- 
 brance as to outweigh the protection it afforded. The tale 
 of the heroism of Winkelried and the share he contributed 
 to the victory is a subject of controversy among historians, 
 though not so thoroughly discredited as the legends of Tell. 
 The results flowing from this remarkable battle were mo- 
 mentous, for it finally broke the power of Austria in the 
 Confederation. The men oif Glarus at once rose against 
 Austria and in April 1388 defeated at Nafels the army sent 
 against them, though the Austrian odds were much greater 
 than at Sembach. In 1389 a peace for seven years was con- 
 cluded, which secured the confederates in all their possessions, 
 and on July 16, 1394 it was extended for twenty years. Only 
 a few months after the battle of Nafels the Swabian cities 
 met a crushing defeat at the battle of Doffingen, and their 
 league came to an end. 
 
 At the head and front of the confederacy, thus /far, had 
 been the men of the Forest States. Uri, Schwyz, Unterwalden 
 and Glarus were still democracies of the ancient German type. 
 The people assembled in the open air as the Landgemeinde. 
 They chose a council to transact current business, but the 
 power of ultimate decision, the sovereign authority, rested 
 in the whole body of citizens, and it was their united mental 
 and physical energies that produced such surprising results. 
 The rule of the cities was more oligarchical in character, the 
 
536 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 chief executive officer and the council acting for the whole. 
 Bern, the most important of the cities, was also the most 
 oligarchical in its constitution. The chief magistrate, called 
 the Schultheiss, and council of twelve from the aristocracy 
 had held exclusive authority till the reform beifore mentioned. 
 The Pfaffen brief j subscribed by all the confederates except 
 Bern and Glarus, contained among others the following im- 
 portant provisions, i. All vassals of Austria, whether clergy, 
 laity, nobles or commoners, taking abode in the confederation, 
 must swear fealty to the Confederates. 2. No foreign ec- 
 clesiastic, dwelling in the Confederacy, should summon others 
 before foreign tribunals, except in ecclesiastical or matri- 
 monial cases. 3. A priest violating this rule should be out- 
 lawed. 4. The Confederates guaranteed the safety of all roads 
 from the Stuhende Briicke on the St. Gothard route as far 
 as Zurich. 
 
 The covenant of Sempach (S em packer brief) y was executed 
 in 1393 by the eight confederates, and also by Solothurn, and 
 recited that, 
 
 "Whereas they had fought and won against Austria they 
 now desired to make provision for future attacks" and pro- 
 vided, I. That no confederate should break into the house of 
 another with intent to plunder either in war or peace. 2. That 
 the safety of merchants in persons and goods be guaranteed. 
 3. Those taking part in future military expeditions were to 
 stand by one another, whatever might happen, like true men, 
 as also their /forefathers did. 4. Should anyone desert in war 
 or break any of the rules of this covenant and his guilt be at- 
 tested by at least two honorable men, he should be promptly 
 punished in his person and goods, according to the law of the 
 state to which he belonged. 5. The wounded were to stay by 
 their comrades until all danger was past nor be considered 
 deserters if unable to help. 6. Thereafter no man should be 
 allowed to take plunder until the fight was at an end and the 
 captains gave permission, and all spoils should be equally dis- 
 tributed to every man a share. 7. All monasteries and churches 
 should remain inviolate, unless the enemy took shelter in 
 them. 8. Women should not be attacked unless they warned 
 
SWITZERLAND 537 
 
 the enemy by an outcry or themselves fought, in which case 
 they should be punished as they deserved. 9. None of the 
 contracting parties should provoke war wantonly without due 
 cause or warning as provided in the various leagues. 
 
 This compact provided no governmental machinery for 
 common ends, but nevertheless was a substantial bond. It 
 advanced principles of humanity, for the violation of which 
 war should afford no excuse. Though by no means free from 
 the savagery of the times, in their provisions for arbitrating 
 disputes among themselves and mitigating the horrors off war 
 the confederates exhibited a morality far in advance of the 
 general spirit of the time. 
 
 The monastery of St. Gallen, founded during the seventh 
 century, had grown into a powerful ecclesiastical establish- 
 ment with large estates. The abbots exercised authority 
 over the estates of the monastery, while the supreme authority 
 over the district was in the hands of an imperial bailiff. In 
 1345 the Abbott was appointed baliff over the city of St. 
 Gallen and the villages of the province. In 1377 five villages, 
 united under the name of Appenzell, joined the Swabian league 
 and created a council of thirteen, elected by the people. In 
 1 40 1 an alliance between these villages, St. Gallen and other 
 communities suffering from the rule of a tyrannical abbot, 
 /formed a league and attacked the possessions of the Abbot. 
 In 1403 Appenzell was taken under the protection of Schwyz 
 and received an Amman from it as chief magistrate, and pro- 
 ceeded to commit further depredations on the abbot's estate. 
 He gathered a considerable force, which met a crushing de- 
 feat at Vogelinsegg. Again, on June 17, 1405, having called 
 in the aid of Austria, an effort was made to compel submis- 
 sion to the Abbot's rule, but the mountaineers were again vic- 
 torious and assuming the offensive overran the whole coun- 
 try southeast of the Boden See. This country they were 
 unable to hold, and in 1407 they sustained a defeat. 
 
 In 141 1 a new alliance was formed between Appenzell and 
 Schwyz, with all the other members of the confederacy ex- 
 cept Bern, by which, however, Appenzell occupied a subordi- 
 nate position under protection of the other states. In 141 2 
 
538 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 St Gallen was also added to the league. In 1388 the people 
 of some of the communes of upper Valais, exasperated by the 
 murder of the Bishop, had inflicted a crushing defeat on 
 Count Amadeus VII of Savoy and the nobility allied with 
 him, and in 1403 the Bishop of Sion and the people of the 
 Valais entered into "Burg und Landrechf with Uri, Unter- 
 walden and Lucern. Here it will be observed that the Bishop 
 and the people were opposed to the nobles. In 1403 Uri and 
 Obwalden invaded and established their authority in Ticino 
 as a subject province. In 141 2 the peace with Austria was 
 renewed for a further period of fifty years. In 141 5 under 
 instigation of the emperor Sigismund, who was at war with 
 Frederick of Austria, the members of the league attacked the 
 Aargau and besieged the stronghold called the Stein. While 
 the siege was being pressed, peace was concluded between the 
 emperor and the duke, and the confederates were ordered to 
 withdraw, but they reifused, took the Stein and divided the 
 territory among the members of the confederacy. Uri how- 
 ever took no share. Disputes having arisen between Schwyz 
 and Zurich over the estate of the Count of Taggenburg, 
 Zurich formed an alliance with the ancient enemy, Austria, 
 and the confederates declared war. In a battle before Zurich 
 the confederates were successful. After a brief time an 
 overwhelming force of mercenaries, called the Armagnacs, 
 came into the country and attacked about 1,300 of the con- 
 federates near Basel on Aug. 21, 1444. A most desperate 
 fight ensued, in which the latter were nearly exterminated. 
 The effect df the battle, however, was to check the advance 
 of the victors. In 1450 the principle of arbitration was in- 
 voked, and the Schultheiss of Bern chosen final arbiter be- 
 tween the contending parties. He declared the allegiance 
 between Austria and Zurich null and that by the perpetual 
 league Zurich was still bound to the confederation. On the 
 other hand Zurich was given back her territory, except a 
 small portion of the Taggenburg estate. 
 
 In 1474 the confederation was drawn into a war with the 
 Duke of Burgundy, in which it defeated him in two great 
 battles and took a great quantity of spoils. Differences hav- 
 
SWITZERLAND 539 
 
 ing occurred between the Forest States and the cities, a diet 
 was called to meet at Stans in Unterwalden to settle matters. 
 It met in 1481 and after stormy scenes finally reaffirmed the 
 Covenant of Sempach and Pfaffenhrief with an additional 
 covenant against dangerous assemblies in the towns leading 
 to tumults. It w^as further provided that the covenants should 
 be sworn to every five years. In 1499 the confederates be- 
 came involved in a war with the Emperor. ' Alfter a brief 
 struggle the matters in dispute were referred to arbitration, 
 and from that time the confederation became practically in- 
 dependent, though not formally recognized as being so. In 
 1500 Basel and Schaffhausen were received into the confeder- 
 ation as the eleventh and twelfth members. The Swiss had 
 reached the stage of a recognized military power, and Swiss 
 mercenaries were eagerly sought by European potentates. 
 The confederation also entered upon a struggle with the 
 French King for Italian possessions, which resulted in their 
 defeat at Morignano in 151 5. Following this war Appen- 
 zell was admitted into the confederation as the thirteenth 
 state. Though the confederation had waged such successful 
 wars, it was still without any central government. All con- 
 cert of action was attained by conferences of representatives 
 of the different states. The diets, which were held by dele- 
 gates, were not strictly legislative or sovereign bodies, but 
 rather assemblies of ambassadors, who could only act in ac- 
 cordance with instructions. Nevertheless the country does 
 not seem to have suffered greatly from the want of a stronger 
 government. Common needs and purposes formed a stronger 
 bond of union than any accepted system would under other 
 circumstances. No error is more common or more harmful 
 than that the acceptance of an official system necessarily adds 
 greatly to the welfare of the people. A government is not 
 firmly established until the people generally are educated to 
 regard it as having rightful authority and to yield obedience 
 to the rules and principles on which it is founded. When this 
 condition is attained, the great majority of the people observe 
 and obey these rules and principles without the direct appli- 
 cation of the power olf governing agencies. Comfpulsory 
 
540 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 measures are only required for the minority who refuse com- 
 pliance. The bond of the feudal system was the oath of the 
 vassal to serve his lord and the promise of the lord to protect 
 the vassal. When the relation was entered into, its obligations 
 were distinctly taught and assumed as a personal duty, de- 
 liberately accepted, and to the performance of which the vas- 
 sal was bound by his oath. In the absence of the compact or 
 of any accepted relation, the vassal would have had the same 
 natural right to lead and command as the lord, and in a com- 
 pany of freemen would as often be chosen by his fellows to 
 do so. 
 
 The peculiarity df the Swiss confederation, distinguishing 
 it from most if not all other confederations, was that it was 
 an EidgenossenscJtaft, an oath bound association, in which 
 the individuals composing the democratic states entered into 
 a written compact, agreeing to do certain things for mutual 
 protection, and to be bound by certain rules which were 
 deemed conducive to the general welfare, and took an oath 
 that they would perform the compact. This was in effect an 
 oath of mutual support in defense of their rights, instead of 
 an oath of fealty to an overlord. The bond which thus tied 
 equals to each other proved in the early struggles even stronger 
 than the feudal bond. It was superior in its moral principles. 
 It appealed both to the conscience and to the intelligence of 
 all the freemen, and the voluntary compliance yielded to the 
 compact was such as to make a few peasants and burghers the 
 superiors in war of the feudal lords of Austria, and even of 
 Burgundy, France and the empire. It is also worthy of notice 
 that the leading necessity for arbitrary central authority, 
 vested in one ruler, is to raise, equip and command armies in 
 war. The need of a single head, vested with power to decide 
 and act promptly, has been almost universally recognized, yet 
 the superiority of the free confederates over the feudal lords 
 and their retainers was demonstrated over and over on many 
 hard fought battle fields. There is much similarity between 
 these early contests and those of the Greeks against the 
 Persians. Perhaps the most significant fact connected with 
 this matter is, that a iforce of men fighting a defensive war, 
 
SWITZERLAND 54i 
 
 which each man regards as his war, and when he has been 
 educated to regard it as his rehgious duty to do his utmost for 
 himself and his sworn comrades, is superior to another force 
 of equal numbers which merely dbeys a constituted leader, 
 and that education in and voluntary assumption of social 
 duties are of the highest value in the organization of states. 
 
 Among the most noted leaders of the reformation was 
 Ulrich Zwingli. He was quite as much a political as a reli- 
 gious reformer, and he preached vigorously against the sin oi 
 fighting the battles of despots for pay. Zurich accepted his 
 doctrines, and the other Swiss cities inclined toward the re- 
 formation. The Forest Cantons remained Catholic. War 
 between the opposing factions threatened in 1529, but a peace 
 was concluded which allowed religious (freedom to each state, 
 not to each person. In 1531 Zurich having cut off supplies of 
 food from the Forest States and suppressed the monastery of 
 St. Gallen and appropriated its lands, civil war broke out and 
 Zurich was defeated. A second peace followed, which rec- 
 ognized the right, not only of states, but of each parish or 
 commune, to determine its form of worship. The League 
 split into two camps. The Catholics held Uri, Schwyz, Un- 
 terwalden, Lucern and Zug, which in 1529 as the ''Christliche 
 Vereinigung" had entered into an offensive and defensive 
 alliance with the King of Hungary, and Freiburg, Solothurn, 
 Inner Rhoden, Appenzell and St. Gall, which gave them seven- 
 teen out of a total of twenty-nine members of the diet as then 
 constituted. The reiformers held Zurich, Bern, Basel Schaff- 
 hausen, Ausser Rhoden (Appenzell) with Graubunden. 
 Thurgau and Glarus were divided. Prior to the reformation 
 Geneva was a republican city, over which the count of Savoy 
 and the BivShop claimed seigniority. In 15 19, at the instiga- 
 tion of the republican elements in the city, a temporary al- 
 liance was formed with Freiburg and Bern and another in 
 1526 for twenty-five years. In 1536 by the aid of an army 
 from Bern Geneva was liberated from the rule of the Bishop 
 and Count of Savoy. The people had been converted to the 
 principles of the reformation, and a new alliance w^as con- 
 cluded. Geneva became the field of the labors of William 
 
542 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Farel and John Calvin, and under their leadership adopted a 
 rigid and intolerant system, which was enforced with the 
 burning af Michael Servetus at the stake for heresy and other 
 cruelties. Secret spies and torture were called to the aid of 
 those who professed a reformation of the Church of Rome. 
 
 In October 1586 the Golden League was formed by the 
 Catholic states of Uri, Schwyz, Unterwalden, Lucerne, Zug, 
 Freiburg and Solothurn for the maintenance of the true faith 
 in their territories and engaging to help each other, if at- 
 tacked by external enemies, notwithstanding any other league 
 new or old. In 161 2 Zurich and Bern entered into an al- 
 liance with the Margrave of Baden. Though religious dis- 
 sensions had disrupted the Confederation, unlike their 
 co-religionists throughout Germany, the opposing factions 
 did not join in the Thirty Years' war, but maintained an atti- 
 tude of neutrality. They were unable to escape some compli- 
 cations with Austria, which conquered the Prattigan, and the 
 Spanish and French in the Valtellaine. 
 
 The treaty of Westphalia, concluded in 1648, terminated 
 the Thirty Years' war and recognized the independence of the 
 Confederation in the following language, ''Aforesaid city of 
 Basel and the remaining Cantons of the Helvetians are in 
 possession of as good as full freedom and exemption from 
 the empire and are in no way subject to the Dikasterien and 
 courts of the empire." 
 
 The hiring of mercenary troops to foreign princes, the 
 payment of pensions to the states for the privilege o/f hiring 
 mercenaries, the rulership of the Aargau, Thurgau and other 
 lands taken by force of arms and ruled as dependencies by the 
 cantons, the exercise of authority by representatives of the 
 states, by bailiffs and captains, tended to develop the aristo- 
 cratic spirit, not only in the cities, but in the Forest Cantons 
 as well. With more intercourse and closer relations with 
 neighboring states and with the growth of individual for- 
 tunes social distinctions and oligarchical tendencies developed. 
 The democratic cantons exercised over their dependencies the 
 rights of the feudal lords whom they had displaced, and with 
 no less vigor. In 1653 the peasant's war broke out in the 
 
SWITZERLAND 545 
 
 Entlebuch, a valley subject to Lucern, and spread over the 
 whole Confederacy. Popular assemblies were held and pro- 
 tests made against the tyrannies of the local governments. 
 Armed encounters followed between the peasants and the 
 authorities, resulting in the defeat olf the former and the 
 barbarous execution of Leuenberger and Schibi their prin- 
 cipal leaders. 
 
 In 1663 Louis XIV of France renewed a treaty, first made 
 with the Confederation in 1602, and thereby obtained their 
 plege to supply him at least 6,000 and not more than 16,000 
 men annually in return for 3,000 francs to each canton an- 
 nually, regular pay for the mercenaries and certain commercial 
 privileges. The aristocratic tendencies were most marked in 
 the cities of Bern, Lucern, Freiburg and Solothurn, where 
 there were no guilds sharing in the government as at Zurich, 
 Basel and Schaffhausen. They were promoted there as every- 
 where by the principle of the inheritance of wealth and power. 
 The burghers, who administered the municipal government, 
 refused to admit new members to burgher rights, and a small 
 class secured possession of all the offices and adopted the 
 principle of cooption, by which they supplied all vacancies by 
 appointment and without any consultation with the body of 
 the citizens. In Bern olf 360 burgher families eighty held all 
 the offices. 
 
 It is most remarkable that Swiss territory should have be- 
 come the dwelling place of so many of the great men of the 
 eighteenth century, Voltaire, Rousseau, Gibbon, Madame de 
 Stael, Lavater and Pestalozzi. On Swiss soil there was an 
 awakening to the falsity of the claim of the descendants of 
 robber barons to rule by right divine, and to the manifest 
 right of all men to liberty, not only of conscience, but of con- 
 duct. Switzerland, though not the field of the great struggle 
 for liberty which took form in the last part of the eighteenth 
 century, was a school in which the principles governing social' 
 relations were 3tudied with great profit and pro/found in- 
 fluence on all western Europe. In 1759 there was formed the 
 Oekonomische Gesellschaft at Bern, said to have been the 
 first agricultural society in Europe. It promoted improved 
 
544 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 systems of agriculture. In 1762 the Helvetian society, with 
 the Baths of Schinznach as the place of its meetings, was 
 formed for the study and discussion of social problems and 
 to promote reforms in public affairs. 
 
 There were various attempts to gain relief from the tyranny 
 of the oligarchies, which had developed not only in the cities 
 but in the Forest Cantons, in Appenzell against Landammann 
 Zwellweger, in Zug against Zur Lauben, in Schwyz against 
 the family of Reding, whose wealth, acquired in foreign 
 service, was made the basis df claims of right to rule at home. 
 In Geneva there were many revolts and efforts to throw off 
 the rule of the oligarchy. 
 
 In Bern the democratic leader Henzi and two companions 
 were executed, as was Waser in Zurich. The lands, wrested 
 from feudal lords by the Confederates and held as subject 
 distri,cts, revolted against the oppression of their rulers: 
 Wilchingen, in Schafhausen, Entlebuch, the Vaud, the Tog- 
 genburg and Val Levantina, all strove for relief, but without 
 success. Those claiming an hereditary right to take the pro- 
 ceeds of the labors of others without compensation main- 
 tained their claims by force and visited barbarous punishment 
 on those who asserted their natural rights. 
 
 In 1790 the Helvetian Club at Paris was formed by exiles 
 from Swiss districts and issued pamphlets teaching the rights 
 of man, which they succeeded in circulating in spite of the 
 efforts of the Cantonal authorities to suppress them. Dis- 
 turbances soon followed. In 1790 Lower Wallis rose against 
 the upper district. In 1792 the "Raurician" republic opposed 
 the prince bishop of Basel and became the French department 
 of Mont Terrible. Napoleon sought an occasion for the oc- 
 cupation of Swiss Cantons, and when exiles from Vaud and 
 Freiburg called in the directory to protect the liberties which 
 had been guaranteed by France, an excuse was found and 
 troops were sent into Mulhausen, Bienne and the territory of 
 the Bishop of Basel and into Vaud where the "Lemanic Re- 
 public" was proclaimed. In 1798 a large French army en- 
 tered the country and took Bern, which alone offered serious 
 resistance and yielded only after a decisive battle. After this 
 
SWITZERLAND 545 
 
 all the other states yielded to French dictation. On April 12, 
 1798 a new constitution, called the Helvetic, was promulgated 
 by authority of the French Directory, which declared the 
 body of all the citizens sovereign, established a representative 
 government, guaranteed religious liberty and (freedom of jthe 
 press, abolished all hereditary titles and powers and all feudal 
 tenures of land. Two legislative bodies were created, a Sen- 
 ate of four delegates from each canton and a Grand Council 
 of representatives elected by the people. The executive power 
 was conferred on a Directory of five members, to be chosen 
 by the Senate and Council jointly. Four ministers at the head 
 of administrative departments were provided for. A supreme 
 court, consisting of one judge from each canton, was created. 
 Each canton was given a prefect, a board of administration 
 and a local court. All distinctions between the cantons and 
 their subject districts were abolished, and the people of all 
 Switzerland were placed on an equal tfooting. This constitu- 
 tion was accepted by all but the three forest cantons, which 
 resisted, but a strong French army after severe fighting en- 
 forced submission and on July 14, 1798, deputies from the 
 eighteen cantons met in Aargau and took the oath of allegiance 
 to the constitution. Nidwalden alone refused to allow its 
 citizens to take the oath and made a desperate resistance, ex- 
 hibiting the ancient Swiss spirit, but was overcome by superior 
 numbers. Much new legislation was passed by the Senate 
 and Council. There was an abolition of all the vexatious 
 trade restrictions between the cantons with which they were 
 burdened, and free trade was established throughout the re- 
 public. In August 1799 an offensive and defensive alliance 
 was formed with France. During that year Switzerland be- 
 came a battleground for the contending armies of France, 
 Austria and Russia, and suffered much from their presence. 
 The Helvetic constitution did not prove acceptable to the peo- 
 ple, and divers new drafts were proposed in 1801 and 1802. 
 In 1802, following the withdrawal o/f French troops, there 
 were uprisings against the authorities, and in the ensuing 
 conflicts the insurgents were generally successful. Napoleon 
 put an end to the strife by issuing a proclamation inviting the 
 
546 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Swiss people to send delegates to confer with him concerning 
 a new constitution. On this call about sixty delegates went 
 to Paris, and on Feb. 19, 1803, a new constitution, styled the 
 Act of Mediation, was signed and promulgated. It was a 
 compromise between the old confederation and the Helvetic 
 constitution. It reinstated the old Diet with enlarged powers, 
 and restored the sovereignty of the cantons. Six cantons 
 were selected, namely Freiburg, Bern, Solothurn, Basel, Zu- 
 rich and Lucern in which the diet was to be held in annual 
 rotation, the Schultheiss or Burgermeister of each capital be- 
 coming in turn President of the confederation with the title 
 of Landamann of Switzerland. Each canton sent one dele- 
 gate to the Diet, but cantons having more than 100,000 in- 
 habitants had two votes. The cantons separately had all 
 powers not delegated to the Federal authorities. The Lands 
 gemeinde in the democratic cantons were restored, and in 
 the other cantons the government was put in the hands of 
 the great council as the legislative body and the small council 
 as the executive, and a property qualification required for 
 voters and officials. No canton was allowed to form a sepa- 
 rate political alliance. Full liberty was given all citizens to 
 settle in any canton and no privileged class, except as stated, 
 or subject lands were allowed. With the downlfall of Na- 
 poleon Switzerland, in common with the rest of Europe, 
 exhibited reactionary tendencies. On Dec. 22, 181 3, Bern 
 declared the Act of Mediation void and reinstated the sur- 
 viving members of the old council, who had served before 
 the revolution. A week later the Diet also denounced the Act 
 and the work of forming a new constitution was undertaken,, 
 but was not completed till 181 5, under the supervision of the 
 great powers, which, at the Congress of Vienna on Nov. 
 20, 181 5, guaranteed Switzerland independence and the in- 
 violability of her territory. On Aug. 7, 181 5, the twenty-two 
 states comprising the confederation signed the new Bundes- 
 vertrag. Valais, Geneva and Neuchatel were now admitted 
 as states on an equal, footing. The new pact regulated the 
 contributions of men and money to the Confederation, and 
 provided a Federal Board of Arbitration to settle internal dis- 
 
SWITZERLAND 547 
 
 putes. The Diet was made of delegates limited to one vote 
 for each canton. Bern, Zurich and Lucern were made capital 
 cities in rotation. The office of Landamann was abolished 
 and no central authority was created to enforce the decrees of 
 the Diet. Church and monastic establishments were guar- 
 anteed protection. Following the adoption of this scheme of 
 loose confederation the cantons returned to much of their 
 ancient system. Censorship of the press and the mercenary 
 system are among the worst of the results of the reaction. 
 
 The spirit which brought about the French Revolution of 
 1830 was also at work in Switzerland, and meetings were held 
 in many of the cantons, demanding reforms and increased 
 respect for popular rights. In that year nine of the cantons 
 revised their constitutions in response to these demands. Dur- 
 ing the following year there were conflicts in Basel, Schwyz 
 and Neuchatel, resulting in the first named in a division into 
 two half cantons. Attempts to revise the federal constitution 
 failed. On March 17, 1832, Luzern, Zurich, Solothurn, St. 
 Gallen, Aargau and Thurgau joined in what was styled the 
 Siebenerkonkordat, guaranteeing the maintenance of the con- 
 stitutions of the members. On November 14 the following 
 conservative cantons Uri, Schwyz, Unterwalden, Baselstadt, 
 Neuchatel and Valais, withdrew from the diet and united in 
 a league ; thus dividing the Confederation into hostile sections. 
 From this time on dissensions between the reformers and 
 conservatives, the Catholics and the Protestants, continued, 
 the cantons arranging themselves in opposing factions ac- 
 cording to the prevailing sentiment in each. In 1843 Luzern, 
 Uri, Schwyz, Unterwalden, Zug, Freiburg and Valais, Catho- 
 lic states, formed the Sonderhimd and in December 1845 
 signed an Act of Secession, appointed a council of war, and 
 pledged each other mutual support in case of attack. War 
 did not result till the fall oif 1847 and was then short and 
 conducted with a most commendable effort to reduce the 
 brutalities of war to a minimum. Dufour, the commander of 
 the federal forces, was both a humane rnan and an able, ener- 
 getic general. A campaign of twenty days settled the issue in 
 favor of the Federal side. On November 30, after the war 
 
548 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 was over, the French ambassador presented a collective note 
 of the great powers, offering mediation between the contend- 
 ing factions, but the offer was rejected on the ground that the 
 issue had already been decided. In 1848 a constitution was 
 adopted. Under it a man settling in a canton other than 
 that of his birth acquired citizenship after two years, but was 
 excluded from communal rights. A Federal legislature was 
 established, made up o)f two houses, the Stande Rath, com- 
 posed of two deputies from each canton, and the national 
 council, elected for terms of three years, one for every 20,000 
 population or major fraction. The Bundesrath of seven mem- 
 bers elected by the assembly, was the executive head, and 
 their chairman was styled President of the confederation. 
 The Bundesgericht of eleven members was the supreme court. 
 All enlistments of mercenaries in foreign service were forbid- 
 den by vote of the assembly. 
 
 On Jan. 31, 1874, a revised constitution was adopted by the 
 two houses and on May 29 was ratified by vote of the people. 
 It is unique in so many of its provisions that it is well worth 
 careful study. The first seventy articles define the purposes 
 of the Confederation, the relation of the cantons to it and 
 to each other, and many other matters difficult to summarize. 
 
 "Article i. The peoples of the twenty sovereign cantons of 
 Switzerland united by this present alliance namely" (names) 
 form in their entirety the Swiss Confederation. 
 
 "Art. 2. The purpose of the Confederation is to secure the 
 independence of the country against foreign nations, to main- 
 tain peace and order within, to protect the liberty and the 
 rights of the confederates and to foster their common 
 welfare." 
 
 "Art. 3. The Cantons are sovereign, so far as their sov- 
 ereignty is not limited by the Federal Constitution, and as 
 such they exercise all the rights which are not delegated to 
 the federal government." 
 
 "Art. 4. All Swiss are equal before the law. In Switzer- 
 land there are neither political dependencies nor privileges of 
 place, birth, persons or families." 
 
 Art. 5. Guarantees to the cantons and their citizens: 
 
SWITZERLAND 549 
 
 their territory, liberty and constitutional rights. Article 6 
 requires the cantons to ask the Confederation to guarantee 
 their constitutions, to be accorded on condition that they are 
 not repugnant to the Federal Constitution and have been 
 ratified by the people. Article 7 prohibits the cantons from 
 forming separate alliances, though conventions with regard 
 to legislative, administrative and judicial subjects are allowed 
 subject to approval of the Federal authorities. 
 
 ''Art. 8. The Confederation has the sole right of declar- 
 ing war, of making peace and of concluding alliances and 
 treaties with foreign powers, particularly treaties relating to 
 tariffs and commerce." 
 
 Art. 9. Preserves the rights of the cantons to make 
 treaties respecting public property and border police inter- 
 course, not conflicting with the rights of the confederation or 
 other cantons. Article 10 relates to intercourse with foreign 
 governments. "Art. 11. No military capitulations shall be 
 made." 
 
 Art 12. Prohibits officials from receiving pay, gifts or 
 titles from foreign governments. 
 
 ''Art. 13. The Confederation has no right to keep up a 
 standing army. No Canton or half Canton shall, without the 
 permission of the Federal government, keep up a standing 
 force of more than three hundred men; the mounted fK)lice 
 not included in this number." 
 
 "Art. 14. In case of differences arising between Cantons 
 the States shall abstain from violence and from arming them- 
 selves; they shall submit to the decision to be taken upon 
 such differences by the Confederation." 
 
 Arts. 15, 16 and 17 provide for mutual aid in case of 
 foreign attack or internal disturbance. 
 
 Article 18 binds every Swiss to perform military service 
 and Arts. 19-20-21 and 22 provide for the organization of 
 the army under the general control of the Confederation, but 
 entrusting certain duties to the cantonal officials. 
 
 Art. 23 authorizes the Confederation to construct public 
 works which concern Switzerland or a considerable part of 
 it. Art. 24 gives the Confederation superintendence of dikes 
 
550 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and forests in the upper mountain region. Art. 25 gives like 
 power to protect game. 
 
 ''Art. 26. Legislation upon the construction and operation 
 of railroads is in the province of the Confederation." 
 
 "Art. 27. The confederation has the right to establish 
 besides the existing Polytechnic School a Federal University 
 and other institutions of higher instruction, or to subsidize 
 institutions of such nature. The Cantons provide for primary 
 instruction which shall be sufficient, and shall be placed ex- 
 clusively under the direction of the secular authority. It is 
 compulsory and in the public schools free. The public schools 
 shall be such that they may be frequented by the adherents 
 of all religious sects without any offense to their conscience 
 or belief. The Confederation shall take the necessary mea- 
 sures against such Cantons as shall not fulfill their duties." 
 
 ''Art. 28. The customs are in the province of the Con- 
 federation. It may levy export and import duties." Article 
 29 requires import duties to be low as possible. Art. 30 gives 
 the proceeds of customs to the Confederation, out of which 
 -certain cantons are given allowances for Alpine roads. 
 
 Art. 31 guarantees free trade throughout the Confedera- 
 tion, except as to articles subjected to state police supervision 
 ^-and the salt and gunpowder monopoly. Art. 32 gives the 
 cantons power to collect duties on wine and spirits under 
 certain restrictions. Art. 32, amended in 1885, authorizes 
 the Confederation to regulate the manufacture and sale of 
 alcohol. Art. 33 permits the cantons to regulate the granting 
 of certificates to practice a liberal profession. 
 
 "Art. 34. The Confederation has power to enact uniform 
 provisions as to the labor of children in factories, and as to 
 the duration of labor fixed for adults therein, and as to the 
 protection of workingmen against the operation of unhealthy 
 and dangerous manufactures. The transactions of emigra- 
 tion and guarantees inviolable secrecy of letters and telegrams, 
 by the State, are subject to Federal supervision and 
 legislation." 
 
 "Art. 34 bis. (Amendment of Oct 26, i8go). The Con- 
 federation will by law establish invalid and accident insurance. 
 
SWITZERLAND 55i 
 
 having- regard for existing invalid funds. It may declare 
 participation obligatory for all or for special classes of the 
 population." Art 35 Forbids gaming houses. 
 
 Art. 36 places posts and telegraphs under the Confedera- 
 tion and guarantees inviolable secrecy of letters and telegrams. 
 Art. 37 gives the Confederation general supervision over 
 roads and bridges and Art. 38 gives it exclusive control of 
 coinage. 
 
 "Art. 39. The Confederation has the power to make by 
 law general provisions for the issue and redemption of bank 
 notes, but it shall not create any monopoly for the issue of 
 banknotes, nor make such notes a legal tender." 
 
 Art. 40. The Confederation fixes and the cantons enforce 
 the standard of weights and measures. Art. 41 makes manu- 
 facture and sale of gunpowder a state monopoly. Art. 42 
 states the sources of revenue of the Confederation. 
 
 "Art. 43. Every citizen of a canton is a Swiss citizen." 
 A Swiss settled in a canton other than that of his birth enjoys 
 full political rights, but does not share in the municipal and 
 corporate property, unless by act of the canton. 
 
 "Art. 44. No Canton shall expel from its territory one 
 of its own citizens, nor deprive him of rights, whether ac- 
 quired by birth or settlement." Naturalization is regulated 
 by federal legislation. Art. 45 gives every Swiss citizen, 
 except criminals and paupers, right to settle anywhere in 
 Swiss territory on a certificate of origin. Arts. 46 and 47 
 subject residents to the jurisdiction of the place of domicil 
 and provide for federal legislation as to temporary settle- 
 ments and to prevent double taxation. 
 
 "Art. 48. A federal law shall provide for the regulation 
 of the expenses of the illness and burial of indigent persons 
 amenable to any Canton, who have fallen ill or died in an- 
 other Canton." 
 
 "Art. 49. Freedom of conscience and belief is inviolable." 
 No person can be compelled to take part in religious services 
 or pay taxes to a religious body to which he does not belong. 
 Art. 50 gives the public authorities supervision of religious 
 bodies with power to determine their controversies. Art. 51 
 
552 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 excludes the order of Jesuits from Switzerland and authorizes 
 the exclusion of any other dangerous order. 
 
 "Art. 52. The foundation of new convents or religious 
 orders, and the reestablishment of those which have been 
 suppressed are forbidden." 
 
 Art. 53 makes civil status and records thereof and control 
 of places of burial subject to civil authority. 
 
 Art. 54 secures freedom in contracting marriage and gives 
 the wife the citizenship of her husband. 
 
 Art. 55 guarantees freedom of the press, but allows the 
 suppression of abuses by the cantons. 
 
 Art. 56 allows freedom in forming associations except for 
 unlawful purpose. 
 
 ''Art. 57. The right of petition is guaranteed." 
 
 ''Art 58. No person shall be deprived of his constitu- 
 tional judge. Therefore no extraordinary tribunal shall be 
 established. Ecclesiastical jurisdiction is abolished." 
 
 Art. 59. Suits for personal claims must be brought in the 
 domicile of a resident solvent debtor. 
 
 "Imprisonment for debt is abolished." 
 
 "Art. 60. All the Cantons are bound to treat the citizens 
 of the other confederated states like those of their own state 
 in legislation and in all judicial proceedings." 
 
 "Art. 61. Civil judgments definitely pronounced in any 
 Canton may be executed anywhere in Switzerland." 
 
 Arts. 62 and 63 abolish exit duties on property. 
 
 Art. 64. The Confederation has power to make laws on 
 legal competency, commerce, copyright inventions and bank- 
 ruptcy. 
 
 "The administration of justice remains with the Cantons, 
 save as affected by the powers of the Federal Court." 
 
 "Art. 65. No death penalty shall be pronounced for a 
 political crime." 
 
 "Art. 66. The Confederation by law fixes the limits within 
 which a Swiss citizen may be deprived of his political rights." 
 
 Art. 67 gives the Confederation power to regulate extra- 
 dition from one canton to another. 
 
 "Art. 68. Measures are taken by Federal law for the 
 
SWITZERLAND 553 
 
 incorporation of persons without country and for the pre- 
 vention of new cases of that nature." 
 
 ''Art. 69. Legislation concerning- measures of sanitary 
 poHce against epidemic cattle disease, causing a common dan- 
 ger, is included in the powers of the Confederation." 
 
 ''Art. 70. The Confederation has power to expel from its 
 territory foreigners who endanger the internal or external 
 safety of Switzerland." 
 
 "Art. 71. With the reservation of the rights of the people 
 and the Cantons, the supreme authority of the Confederation 
 is exercised by the Federal Assembly which consists of two 
 sections or councils to-wit : 
 
 A. The National Council. 
 
 B. The Council of States." 
 
 Arts. 72 to 79 provide that the National Council shall be 
 composed of one representative for each 20,000 persons or 
 major fraction and gives at least one to each canton and half 
 canton of a divided one. All Swiss twenty years of age may 
 vote and are eligible to election. The term is three years. 
 The Council chooses from its members a President and Vice- 
 President for each session. 
 
 Arts. 80 to 83 relate to the Council of States which con- 
 sists of two representatives from each canton, and chooses 
 its President and Vice-President for each session. 
 
 Arts. 84 to 94, give the Federal Assembly legislative power 
 over the matters within the control of the Confederation. A 
 majority of each Council is a quorum and a majority of those 
 voting is required. 
 
 "Art. 89. Federal laws, enactments, and resolutions shall 
 be passed only by the- agreement of the two Councils. 
 
 "Federal laws shall be submitted for acceptance or rejection 
 by the people, if the demand is made by 30,000 voters or by 
 eight Cantons. The same principle applies to federal reso- 
 lutions which have a general application, and which are not 
 of an urgent nature." 
 
 Articles 90 to 94 relate to elections, voting of members of 
 the Council and the introduction of measures and sittings of 
 the Council. 
 
554 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 "Art. 95. The supreme direction and executive authority 
 of the Confederation is exercised by a Federal Council, com- 
 posed of seven members." 
 
 Articles 96 to 104 provide that members of the Federal 
 Council are chosen by the Councils in joint session for a term 
 of three years, and they also choose from the Council a Presi- 
 dent and Vice-President for one year. Members are dis- 
 qualified from holding any other office or following any other 
 pursuit. President and Vice-President cannot hold two years 
 in succession. Four members of the Council make a quorum. 
 Members have the right to speak but not to vote in either 
 house. 
 
 "Art. 105. A Federal Chancery, at the head of which is 
 placed the Chancellor of the Confederation, conducts the 
 secretary's business for the Federal Assembly and the Fed- 
 eral Council." The Chancellor is chosen by the Assembly for 
 three years. 
 
 "Art. 106. There shall be a Federal Court for the ad- 
 ministration of justice in federal concerns. 
 
 "There shall be, moreover, a jury for criminal cases." 
 
 "Art. 107. The members and alternates of the Federal 
 Court shall be chosen by the Federal Assembly, which shall 
 take care that all three national languages are represented 
 therein. 
 
 "A law shall establish the organization of the Federal Court 
 and of its sections, the number of judges and alternates, 
 their term of office and their salary." 
 
 Arts. 108 to 114 relate to the organization, powers and 
 jurisdiction of the court, which extends to all cases in which 
 the Confederation is a party, between cantons and between 
 cantons and persons or corporations, involving the status of 
 persons, and important cases which the parties agree to submit 
 to it, and of poHtical crimes and against officials acting under 
 federal authority and over questions of conflicting jurisdic- 
 tion and constitutional law. 
 
 "Art. 118. The Federal Constitution may at any time be 
 wholly or partially amended." 
 
 "Art. 119. Complete Amendment is secured through the 
 forms required for passing federal laws." 
 
SWITZERLAND 555 
 
 ''Art 1 20. When either Council of the Federal Assembly 
 passes a resolution for the complete amendment of the Federal 
 Constitution and the other Council does not agree; or when 
 fifty thousand Swiss voters demand the complete amendment, 
 the question whether the Federal Constitution ought to be 
 amended is, in either case, submitted to a vote of the Swiss 
 people, voting yes or no." 
 
 Art. 121. (Amendment of July y, i8pi). 
 
 "Partial amendment may take place through the forms of 
 Popular Initiative, or of those required for passing federal 
 laws. 
 
 'The Popular Initiative may be used when fifty thousand 
 Swiss voters present a petition for the enactment, the aboli- 
 tion or the alteration of certain articles of the Federal Con- 
 stitution. 
 
 ''When several different subjects are proposed for 
 amendment or for enactment in the Federal Constitution by 
 means of the Popular Initiative, each must form the subject 
 of a special petition. 
 
 "Petitions may be presented in the form of general sugges- 
 tions or of finished bills. When a petition is presented in the 
 form of a general suggestion, and the Federal Assembly 
 agrees thereto, it is the duty of that body to elaborate a partial 
 amendment in the sense of the Initiators, and to refer it to 
 the people and the Cantons for acceptance or rejection. If 
 the Federal Assembly does not agree to the petition, then the 
 question of whether there shall be a partial amendment at all 
 must be submitted to the vote of the people, and if the ma- 
 jority of Swiss voters express themselves in the affirmative, 
 the amendment must be taken in hand by the Federal As- 
 sembly in the sense of the people. 
 
 "When a petition is presented in the form of a finished bill, 
 and the Federal Assembly agrees thereto, the bill must be re- 
 ferred to the people and the Cantons for acceptance or re- 
 jection. In case the Federal Assembly does not agree, that 
 body can elaborate a bill of its own, or move to reject the 
 petition, and submit its own bill or motion or rejection 
 to the vote of the people and the Cantons along with the 
 petition." 
 
556 EVOLUTION OF GOVERNMENTS AND Lu\WS 
 
 "Art. 122. A Federal law shall determine more precisely 
 the manner of procedure in popular petitions and in voting 
 for amendments to the Constitution." 
 
 ''Art. 123. The amended Federal Constitution, or the 
 amended part thereof, shall be in force when it has been 
 adopted by the majority of Swiss citizens who take part in 
 the vote thereon and by a majority of the States. 
 
 ''In making up a majority of the States the vote of a Half- 
 Canton is counted as half a vote. 
 
 "The result of the popular vote in each Canton is con- 
 sidered to be the vote of the State." 
 
 In several particulars the development of the governmental 
 system of Switzerland is unique. From the first advent of its 
 Teutonic population there has been a settled distrust of ar- 
 bitrary power and a disinclination on the part of the demo- 
 cratic communities to submit, for any purpose, to the dicta- 
 tion of a central authority. The cantons have manifested 
 a willingness to combine for defense against Austrian and 
 other rulers, who sought to impose their authority, but after 
 success have preferred to retain freedom from any superior 
 authority. The first real union under a central authority 
 was forced on them by France, but since then the remodelled 
 government is the product of Swiss genius. They have had 
 to deal with people differing in language, ancestry and cus- 
 toms, separated by natural barriers and dwelling under a great 
 variety of conditions. They have had democratic agricul- 
 tural cantons and oligarchical cities, monastic establishments 
 and Calvinists, cantons claiming proprietary rights over other 
 districts, and a vast complication of petty trade restrictions 
 and vexatious regulations imposed by each district for local 
 advantage, to contend with. The inherent difficulties of es- 
 tablishing a system just and satisfactory to the German, 
 French and Italian elements, to urban and rural communities, 
 have not been less than those presented to statesmen elsewhere. 
 They have also been subjected to external influences, which, 
 to a weaker race, would have been irresistible, but which they 
 with a moral and physical courage never excelled by any 
 people have successfully overcome. Against the intrigues of 
 the great powers they have presented a superior code of 
 
SWITZERLAND 557 
 
 morals and superior devotion to the true interests of their 
 •country. 
 
 The initiative and referendum, by which the people retain 
 in their ov^n hands at all times power to veto the acts of their 
 representatives, to compel action by them on matters they 
 will not undertake, and to amend even the fundamental law 
 whenever they see fit, is a natural outgrowth of the heredi- 
 tary distrust of delegated power. The Swiss system is clearly 
 the most democratic, and gives the most unrestricted play to 
 the law of social growth and progress of any ever devised. 
 At the same time the process which is marked out for legisla- 
 tion insures full consideration of the question acted on, and 
 guards against the dangers of popular passions perhaps as 
 well as any known system. These dangers are usually greatly 
 magnified. Unjust systems, by which a few profit and many 
 suffer, are always built behind the protection of the govern- 
 mental system. There is little occasion for fearing that such 
 systems will be established as a result of a popular vote, but, 
 whenever clearly pointed out, an existing one is likely to be 
 more quickly gotten rid of by the direct action of the people 
 than in any other manner. It is almost axiomatic that the 
 deliberate judgment of the whole people, on any matter of 
 general interest, is more likely to be right than that of a 
 less number, entrusted with powers and privileges distin- 
 guishing them from the multitude and viewing the matter 
 from the standpoint of a favored class. 
 
 In practice the referendum has operated mainly as a check 
 on the action of the Federal Assembly, a few of the laws 
 passed by it having been rejected by the people, while more 
 than five to one of the enactments of the assembly have been 
 allowed to take effect without any call for submission to a 
 popular vote. The existence of the power in the hands of the 
 people to reject an enactment must act as a wholesome check 
 on the legislature, and the initiative tends to stimulate action 
 demanded by the people. 
 
 Another marked superiority of the Swiss system over that 
 of other European states is the absence of a standing army, 
 the greatest curse which the governments of modern Europe 
 impose on their people. Switzerland follows a settled policy 
 
558 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of neutrality in all the wars of other nations, and recognizes 
 the principle of arbitration as of the same value and fulfilling 
 the same mission of peace in the settlement of disputes be- 
 tween nations that the courts perform with reference to the 
 contentions of individuals and bodies of citizens within the 
 state. The ambition of military leaders, inherited feelings of 
 hostility between nations, and ignorance of the blessings 
 which may be derived from friendly intercourse, still pro- 
 duce that most lamentable spectacle of great nations profess- 
 ing civilization and Christianity, groaning under the weight 
 of crushing military establishments, each of which becomes 
 the main reason and excuse for the maintenance of the other. 
 Bern, the Swiss capital, has also become the seat of the 
 most advanced governmental combination ever yet effected, 
 the international Postal Union, a governmental combination, 
 the sole purpose of which is to facilitate intercommunication 
 between the people of all the nations of the earth. It dis- 
 charges one of the highest and best functions of government, 
 a useful service through the friendly cooperation of all na- 
 tions in a surprisingly economical manner. Perhaps Swiss 
 statesmen are not entitled to especial credit for the success of 
 the Union, but the peaceful principles on which the state acts 
 render it the natural home of such a Union. Switzerland, 
 after enduring the evils of the lordship of one canton over 
 the people of another under a claim of property rights, now 
 has no subject territory. Wherever Swiss sovereignty 
 reaches are Swiss citizens with equal political rights. The 
 constitution shows evidences of a desire to reach better ad- 
 justment of compensation for labor, to better the situation 
 of those who have less than a fair share of the fruits of in- 
 dustry, but it cannot be said that any principle of property 
 rights in marked advance of those recognized in other coun- 
 tries has been accepted. 
 
 Authorities 
 McCracken: Rise of the Swiss Republic. 
 Colton : Annals of Switzerland. 
 Stead and Hug: Switzerland. 
 Foreign Constitution. 
 Encyclopaedia Britannica. 
 
CHAPTER XXIII 
 
 France 
 
 No country presents a more instructive history in the Hne 
 of our study than France. We here have a chance to observe 
 the development and reconstruction of their institutions by 
 a people substantially homogeneous, who have dwelt in the 
 same state for more than two thousand years. The French- 
 men of today are the lineal descendants of the Gauls, Belgians 
 and Iberians of the days of Caesar, with some admixture, it is 
 true, of Roman and German blood, and some commingling of 
 Northmen. The record of events from the time of the Roman 
 invasion is perhaps more full and complete than that of any 
 other country. Nowhere else can be found wider extremes or 
 greater variety of political institutions and theories of gov- 
 ernment. All stages of social organization from that of the 
 small semi-savage tribe to the vast empire, and from the abso- 
 lute despotism to the commune, have been exhibited. Abject 
 slavery has been followed by the theory at least of liberty, 
 fraternity and equality. Since Rome fell, no other European 
 country has exercised so profound an influence on the insti- 
 tutions of other states. 
 
 The earliest inhabitants of whom we have any accounts 
 include Iberians, presumed to have been the earliest comers, 
 the Gauls and their kinsmen the Belgians. The descendants 
 of the Iberians still dwell on the slopes of the Pyrenees and 
 are called Basques. They were short of stature, of dark com- 
 plexion, resolute and tenacious in the defense of their homes, 
 but without capacity for organization on a large scale. The 
 Gauls of early days, like the French people of today, were 
 bright, vivacious, brave and intelligent, but they too had made 
 little progress in the organization of society. They dwelt in 
 villages mainly, but had some walled towns. Caesar describes 
 them as divided into factions, and mentions these factions as 
 
 559 
 
56o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 extending into every clan and village. The ruling classes were 
 divided into two distinct orders, the knights and warriors, 
 whose only calling was war, and who substantially every year 
 carried on strife with some neighbor, and the Druid priests, 
 who were not only charged with the management of religious 
 rites, but also were the judges and teachers of the people. 
 Beneath these ruling classes were slaves in large numbers, 
 constituting the bulk of the population. The authority of the 
 Druids was very great, and the Roman church appears to 
 have borrowed some of its forms from them. One method of 
 enforcing their judgments was by excommunication and inter- 
 dict, causing everyone to fly from the condemned person as a 
 being accursed, and to whom they could give no aid without 
 calling down the heaviest penalties on themselves. They sac- 
 rificed human beings to their gods, preferably criminals and 
 enemies, but for want of these the innocent were taken, and 
 religious enthusiasm induced some to voluntarily become vic- 
 tims. In their exemptions from military duty and from taxes 
 the Druids enjoyed privileges similar to those of the later 
 clergy. In the use of torture in their trials and of burning as 
 a punishment they furnished precedents for the Inquisition, 
 and they ranked the crime of resisting their authority, as the 
 later church did that of heresy, the most deadly of all offenses. 
 Yet Caesar praises the impartiality of their justice, and gives 
 them credit with protecting the weak as well as the strong. 
 They built no churches, but held their rites in the groves. 
 Whether polygamy was practiced is not made very clear, but 
 it seems that it was. Caesar says that at marriage the husband 
 added to the wife's dowry an equal sum, and that the increase 
 of the whole was kept by itself and belonged to the survivor 
 on the death of one of them. The husband and father had 
 the power of life and death over his wife and children. Fu- 
 nerals were conducted with great extravagance and ceremony, 
 and with human sacrifices of slaves or dependents of rich 
 nobles. The Gauls appear to have passed the stage of common 
 tenure of land in Caesar's time, for he speaks of the Druids 
 liaving power to decide questions of boundary. They were 
 accustomed to the use of money, and in the useful arts were 
 
FRAXXE 561 
 
 considerably in advance of the Germans. The Belgians were 
 more like the Germans, to whom they were nearer and more 
 closely related, and with whom they were almost constantly 
 at war. Some progress had been made in weaving and metal 
 working. Confederations were sometimes formed by differ- 
 ent tribes for defense against incursions from the east, but 
 they were not inclined to unite for aggressive warfare. 
 
 The Greeks at an unknown date settled at Marsailles and 
 established Masselia, which became an important trading port, 
 and in 122 B.C. the Romans founded the town of Aquae Sex- 
 tiae, now Aix, and spreading out over the adjacent country 
 formed the province of Gallia Braccata, of which as a Roman 
 municipium Narbonne was made the capital in 118 B.C. . In 
 the time of Caesar the Helvetians and German tribes were 
 threatening to invade Gaul, and Caesar's first campaigns were 
 against them, with the Gauls seeking his assistance and pro- 
 tection. Having overcome these enemies, Caesar proceeded to 
 reduce Gaul to the Roman authority, and by 50 B.C. had ac- 
 complished the task. From Gaul as a basis he established his 
 power over Rome. Roman institutions were well adapted to 
 the tastes and needs of the Gauls, who soon became thorough- 
 ly Romanized. The work of organization was not completed 
 in Caesar's time. In 27 B.C. Augustus established three new 
 provinces, in addition to the old one, out of the territory con- 
 quered by Caesar, namely Aquitania in the southwest, Lugdu- 
 nensis in the middle and Belgica in the north. The population 
 of the country was mainly of the ancient stock, with whom 
 Roman colonists freely mingled. Though there were some 
 revolts after Caesar's time, they were soon suppressed. The 
 Romans brought their system of agriculture, their laws and 
 arts. They built cities, made roads, encouraged commerce and 
 established social order. 
 
 A long period of peace and rapid advancement in civiliza- 
 tion followed. By 160 the Christian religion was introduced, 
 and during the next hundred years it spread rapidly. The 
 country was substantially exempt from inroads of foreign 
 enemies for about three centuries. Under the empire Gaul 
 played an important part. Antonius Pius was a native of 
 
562 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Gaul. In the last half of the third century Postumus estab- 
 lished a Gaulic empire, which was continued by his successors 
 Victorinus and Tetricus. In 236 the Alemanni, a German 
 tribe unknown to the Romans, crossed the Rhine, but were 
 driven back, and about the same time the Goths appeared on 
 .the Danube. During the next half century there were many 
 incursions of Frank and Alemanni into Gaul, but no perman- 
 ent conquest. By this time the imperial government had so 
 ground the people of Gaul with taxation that they were thor- 
 oughly impoverished, and a notable uprising of peasants and 
 slaves took place in 285, which spread over the north of Gaul 
 and added to the miseries of the people. The title to the land 
 -was held by a few, and the work of tillage was mainly per- 
 formed by slaves. The Gauls under Roman rule relied on the 
 imperial government for protection, and when the period of 
 disorder came, they were an easy prey to their more warlike 
 neighbors across the Rhine, who, free from Roman domina- 
 tion, organized expeditions when conditions were favorable. 
 Thus from 260 to 268 a band of Franks swept through Gaul 
 into Spain and finally passed into Africa and disappeared. 
 From this time forward there was more or less border warfare 
 and incursions of Germanic tribes into Gaul, some of whom 
 'effected permanent settlements. 
 
 Early in the fifth century commenced that movement of 
 people which put an end to Roman rule in Gaul. From 406 to 
 409 there was a deluge of invaders, who mercilessly killed the 
 people and destroyed their property. Cities and towns, of 
 which a great number had been built, were taken, pillaged and 
 burned. In 412 the Visigoths and Burgundians established 
 kingdoms in the south of Gaul. In 451 Attila and the Huns, 
 -who had become the terror of Europe, made their way into 
 Gaul and took Orleans. They were met by the combined 
 forces of Romans, Gauls, Goths and Germanic tribes, defeated 
 ■at Chalons in a great battle, and expelled from the country. 
 
 The Franks, from whom France takes its name, were main- 
 ly settled in the neighborhood of the lower Rhine, and were 
 divided into the Salians and Ripuarians. Though prior kings 
 are named, their history is unimportant, and with Clovis king 
 
FRANCE 563 
 
 of the Salian Franks of Tournay commences the Frankish 
 state. Clovis was a fierce, cruel, cunning and unscrupulous 
 barbarian, who did not hesitate to take the lives of all who 
 stood in his way, often with his own hand, but he was suc- 
 cessful in extending his power over nearly all Gaul. He mar- 
 ried a Christian maid, Chlotilde, who, aided doubtless by other 
 influences, converted him to Christianity. His warriors also 
 were baptized, but neither he nor they took in much of Chris- 
 tian morality. He however became allied with the Christian 
 clergy, who aided him in extending his power. The dynasty 
 founded by Clovis derives its name from one of his ancestors, 
 and is styled the Merovingian. With it the history of France 
 as a nation begins. At his death Clovis left his kingdom di- 
 vided among his four sons. He had acquired most of it by 
 conquest, and he left it as an inheritance, divided according 
 to the prevailing German custom among all his sons. They 
 fought for the shares of each other, with the result that 
 Clotaire got it all. At his death it was partitioned among 
 his four sons- and again united under Clotaire H. The Mero- 
 vingians ruled from 5 1 1 to 752, and their history teaches little 
 but the evils of despotic military rule. They were cruel, per- 
 fidious, debauched and many of the later ones almost idiotic. 
 The pernicious principle of treating political power as property 
 to pass by inheritance caused untold misery and misfortune 
 to the people. No other dynasty illustrates so constantly and 
 forcibly the evil consequences of passing political power from 
 father to son without regard to capacity or merit. No other 
 dynasty exhibits in more disgusting form the evils of despotic 
 rule. Not kings only, but queens as well, displayed their 
 cruelties and vices. The stories of Fredegonde and Brune- 
 child are typical of a most cruel age and the execution of the 
 latter, at the advanced age of eighty by tying her to the tail 
 of an unbroken horse by the hair of her head, one arm and 
 one foot, of the possibilities of kingly cruelty under Clotaire 
 II. Murder and rapine lay at the foundation of the kingdom, 
 and morality found, little lodgment in the palace or the home 
 of the great landlord. Christianity was for them merely the 
 name of a superstition, and these coarse and brutal rulers 
 
564 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 hoped for aid in their cruel deeds from the unseen power, to 
 whose priests they gave present of lands and goods. 
 
 The government, laws and land tenure, which developed 
 as a result of the conquest of the Franks, were made from 
 three widely different systems. Before the advent of the 
 Franks the Roman law furnished rules for all property rights, 
 land tenure and inheritance, as well as for determining the 
 status of citizens and slaves. The people were accustomed to 
 submit to the cruel exactions of the tax gatherers, who robbed 
 them of their substance without returning any considerable 
 benefit in the way of public works or services. Illiteracy and 
 ignorance were general, and the moral tone of society low. 
 A large proportion of the people was held as slaves to the rest. 
 In race the inhabitants were mainly Gauls, with an admixture 
 of Romans, and with settlements of Goths and other Germanic 
 tribes in places. The Franks had never been subject to Roman 
 rule or law. They preserved and followed most of the ancient 
 German customs, though the power of the king had been con-, 
 siderably increased. The controlling power of the nation still 
 resided in the assembly of freemen, but the king and his an- 
 trustions, the followers of his person, had become a military 
 caste and largely dominated the affairs of the state. ^ 
 
 Three orders of people had been formed among them. The 
 antrustions, the freemen and slaves, whose relative importance 
 may be judged by the rate of composition allowed for taking 
 the life of one of them. For the antrustion, six hundred sous, 
 for an ordinary freeman two hundred sous and for a bondman 
 forty-five sous. At and prior to the time of Clovis the antrus- 
 tions had not become a landed aristocracy. They were the 
 companions and personal followers of the king, who fought 
 with him and received a share of the booty taken, and were 
 accorded a degree of consideration above that of ordinary 
 freemen. To just what degree the ancient German system of 
 common tenure of land had been modified it is difficult to de- 
 termine, but neither the idea of individual ownership of an 
 
 * For a very full and interesting account of the development of the 
 laws of France see Broussaud's French Private Law, Continental Legal 
 History Series, vol. 3, 
 
FRANCE 565 
 
 inheritance in the soil, nor of feudal tenure, had gained gen- 
 eral recognition. In religion they worshipped the fierce Ger- 
 man gods without the intervention of any priestly order. In 
 domestic life they were monogamists, and their women were 
 treated as companions. Though their customs admitted slav- 
 ery, slaves were not numerous among them. On their advent 
 into Gaul they found the Roman Church. It had supplanted 
 the ancient Druids and already owned considerable estates. 
 Among a people sunk in ignorance and prone to gross super- 
 stition, the clergy, with the mystery of book and bell, had 
 gained great influence, and through the confessional, absolu- 
 tion, baptism, marriage and the many functions assumed as 
 pertaining to religion, exercised a potent authority. Clovis 
 adopted this religion, and his soldiers followed him to baptism 
 as they did to battle. Though in after times contentions some- 
 times arose between the princes and the clergy, the two, work- 
 ing in concert, contributed greatly to each other's power. The 
 princes encouraged the support of the church, and often grant- 
 ed it great possessions, and in return the clergy taught the 
 ignorant multitude the divine right of kings to rule and the 
 sacredness of their persons. The church had its peculiar list 
 of offenses against its rules and authority and its own system 
 of punishing offenders. The Franks as conquerors became the 
 dominant force, and in all matters pertaining to the rights of 
 Franks the Salic law prevailed, but it was crude and covered 
 only the needs of a comparatively simple people. The Roman 
 law, having been the development of a great empire during a 
 long course of time, was of far greater volume and complexity, 
 but owing to the long period of oppression, the general ignor- 
 ance and the inefficiency of the judicial system, there was not 
 much knowledge of its principles among the people. The 
 existence of its learning and refinements in scattered volumes, 
 which few even of the ruling class could read, afforded almost 
 no protection to any one in his rights. The canons of the 
 church were of more living force, for they were studied and 
 followed by the clergy in all matters of ecclesiastical cogni- 
 zance. The earliest code of Salic law extant is of uncertain 
 date, but must have been written subsequent to the early con- 
 
 A 
 
566 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 quests of Clovis. The legislative power was still in the as- 
 sembly of freemen, and the judicial power in a judicial 
 assembly of freemen. Punishments were almost exclusively 
 by fines, and the law determined the distribution of weregeld 
 among the kindred of a murdered man. It is said that the 
 Germans knew only two capital crimes. They hanged traitors 
 and drowned cowards. All other offenses could be commuted 
 in money. In their first inroads the Franks came as red-hand- 
 ed spoilers. The plunder taken was divided among the con- 
 querors. At first they did not covet land so much as cattle 
 and goods, which they took wherever they could find them. 
 In the development of the system of land tenure it was not at 
 first the custom to grant great fiefs in perpetuity, or even for 
 life. In that system which afterward became so general, by 
 which the power and dignity of the nobles were measured by 
 the tenure and value of their lands, the first step hardly con- 
 tained a hint of what followed. At first the counts were sent 
 to rule over their districts for a year only. The distribution 
 of the counties was a matter debated in the general assembly, 
 but later it was solely for the king. The authority of the 
 counts was renewed from time to time, until an assignment to 
 a county was generally equivalent to a term for life. 
 
 Clovis and his sons raised and led their own armies, ap- 
 pointed the counts who ruled in the counties and the chiefs of 
 hundreds, but in the course of a few generations the inca- 
 pacity of the kings made it necessary to choose more vigorous 
 leaders. In a society constituted like that of the Franks at 
 that time the chief man in the household of the king, where 
 all the principal men congregated, naturally exercised the 
 authority which the king was too weak or too indolent to 
 exert. The mayors of the palace were sometimes named by 
 the kings to aid them in their struggles with the lendes, the 
 antrustions, and sometimes elected by the lendes in opposition 
 to the king. While the kingdom was divided, in Neustria the 
 mayors supported the interests of the kings, while in Austrasia 
 they sided with the lendes. The mayors assigned the lords to 
 their fiefs, raised the armies and led them to battle. Under 
 Dagobert I and his son, Sigebert II of Austrasia, Pepin of 
 
FRANCE 567 
 
 Landen, who had acquired vast possessions and great military 
 prestige, became mayor of the palace. His son and then his 
 grandson Pepin succeeded to his authority. The latter for 
 twenty-seven years and during the time of four kings exer- 
 cised the chief power in the state. He sought to pass his 
 power at his death to an infant grandson by his first wife, but 
 the nobles would not have it so and chose his* son Charles in- 
 stead. Charles became the real ruler, and the kings were 
 mere puppets in his hands. The invasion of the Mohamme- 
 dans and their crushing defeat by the Christians under the 
 command of Charles at Poiters in 732 gave him the name of 
 Martel and greatly strengthened his position. Charles found 
 it necessary in order to carry on his wars to make the church 
 contribute, and did not hesitate to lay hold of church lands 
 and confer them on his 'followers. Still he was a zealous 
 churchman, and labored not only to drive back the Moslems, 
 but also to propagate Christianity in Germany. At his death 
 he transmitted a divided authority to his two sons, but one 
 of them soon withdrew to a monastery, leaving Pepin sole 
 mayor and ruler in fact. 
 
 In 752, with the advice and consent of the Pope, the gen- 
 eral assembly of lords and bishops proclaimed Pepin king and 
 put an end to the puppet kings. During the times of the 
 mayors of the palace much progress had been made in the 
 development of the feudal system. Land had become the 
 source of wealth and power. The possessions of the church 
 had been extended at times and taken away at others. The 
 many partitions of the kingdom and the constant struggles 
 between the descendants of Clovis, and later the mayors of 
 the palace, for the whole kingdom, with the frequent murders 
 and confiscations, brought new lands to the king, which he 
 found it necessary to confer on his retainers in consideration 
 of their support. Each vassal receiving a benefice became 
 bound to furnish aid to the sovereign, corresponding with 
 the size of his estate. In this manner much land had become 
 the subject of tenure as benefices from the king or mayor, 
 though most of it was then held only for life. 
 
 The succeeding reign of Charlemagne stands out in bold 
 
568 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 relief in a barbarous age. The extension of his empire and 
 the system of government he estabhshed have already been 
 considered in the chapter on Mediaeval Europe and will not 
 be here repeated. The feudal system as developed in France 
 has also been treated in the same connection. The house 
 established by Pepin reached its acme of intellectual vigor as 
 well as of power in Charlemagne. With all his prudence in 
 affairs of state, he adhered to the ancient Prankish custom of 
 dividing his empire as an inheritance among his sons, and this 
 custom continued under the Carlovingians as in the first dyn- 
 asty. The nobility, from being personal followers of the king, 
 entrusted by him with the administration of local affairs for 
 such limited period as he, with the assent of the popular as- 
 sembly might fix, had grown in power and asserted a title to 
 great estates; and from the time of Charlemagne the bene- 
 fices began to be treated as inheritances which the king had no 
 power to take away. With a firm hold on the land the feeling 
 of dependence on the king abated, and the system, which was 
 originally designed to create a strong bond of imion between 
 king and vassal, by a very natural evolution rendered the king 
 dependent on his great vassals and reduced his authority to a 
 shadow. The genius and energy of Charlemagne led him to 
 take the utmost pains to gather information with reference to 
 the condition of affairs in every part of his empire. He held 
 frequent assemblies of the freemen, where laws and regu- 
 lations were discussed. From these the double advantage 
 accrued of gathering information from the people drawn 
 together from different parts of the states for his own en- 
 lightenment, and the dissemination of knowledge and instruc- 
 tion in laws and principles of government among the leading 
 citizens. He also employed messengers, constantly traveling 
 over the country, to learn and report how the local affairs 
 were being administered and what the needs of the people 
 were. Nothing indicates more strongly his wonderful energy 
 and capacity than his success in gaining and distributing in- 
 formation. Herein lies one of the greatest inherent weak- 
 nesses of a government by a single ruler. He cannot and does 
 not know much about the conditions and the needs of his sub- 
 
FRANCE 569 
 
 jects. In the nature of things a single person can be in but 
 one place and investigate but one subject at a time. In a great 
 kingdom there are thousands of places and subjects requiring 
 careful, patient, intelligent consideration, and often vigorous 
 action. To the indolent king in his palace with his dissolute 
 courtiers the needs of the times are almost unknown, and 
 often the capacity to act efficiently is wanting. The task is 
 altogether too great even for the greatest of men. This truth 
 was well illustrated in the succeeding reign of Louis the Pious, 
 who is characterized as moral, cultured and actuated by the 
 highest motives and purposes, yet in his tastes he was modest 
 and retiring, preferring solitary study to mingling with the 
 throng. The government of such an empire imperatively de- 
 manded the utmost vigor in gathering knowledge of what 
 was going on and the most prompt and resolute action. It 
 was not an age when moral worth in a king brought volun- 
 tary compliance with his wishes. The soldiers, who had 
 followed his father, Charlemagne, in his victories, were fierce 
 barbarians. Charles himself could be bloody and cruel when 
 he deemed it useful, as in the case of the revolted Saxons, 
 when he cause the heads of four thousand five hundred 6f 
 their chief men, whom he had summoned to meet him, to be 
 all cut off in one day. Gentleness and humility were virtues 
 not then appreciated in a ruler. Courage, strength and an 
 iron will were requisite to the control of a turbulent and im- 
 moral nobility. The reign of the pious, kind Louis was of 
 weakness, disorder and civil war. In the laws which he pro- 
 mulgated the wonderful diversity of genius and marvelous in- 
 tellectual energy of Charlemagne is displayed. His Capitu- 
 laries included articles inculcating moral precepts, regulating 
 matters political and of administration, prescribing penalties, 
 regulating civil rights, relating to religious matters, canonical 
 observances and incidental matters. The Capitularies were 
 lacking in system and logical arrangement, and many of them 
 were mere expressions of sentiment on some moral or religious 
 subject, but taken all together they exhibit the activities of a 
 remarkable mind, capable at the same time of formulating 
 rules and carrying them into practical operation. Unlike some 
 
570 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of his successors, Charles was not afraid of learning, but had 
 a school in the palace conducted by the best teachers he could 
 obtain, and he encouraged the dissemination of such learning 
 as was then taught. There was too much ignorance and bar- 
 barism for him to fear the effects of learning among the 
 people. It was a most laudable command he gave to the bishops 
 and abbots, that in the cloistral schools "they should take care 
 to make no difference between the sons or serfs and of free- 
 men, so that they might come and sit on the same benches to 
 study grammar, music and arithmetic." Charles ruled forty- 
 six years from 768 to 814 with Aix la Chapelle as his capital 
 and an empire covering parts of Italy and Germany and all of 
 France. The empire he established fell apart under his suc- 
 cessors, and the Carlovingian dynasty came to an end in 987, 
 prior to which time thirteen kings of that race sat on the 
 throne of France. During this period there were many incur- 
 sions of the Northmen, who ravaged the coasts, ascended the 
 rivers, took and pillaged many of the chief towns. These be- 
 came more frequent and in larger numbers until the reign of 
 Charles the Simple, when the Northmen under the lead of Rolf 
 settled at Rouen. In 912 Rolf was given as a fief the lands 
 he and his followers had conquered and became a vassal of the 
 king. The Normans settled down to agriculture, and no fur- 
 ther incursions ensued. 
 
 The Magyars made inroads from 910 to 954 in the eastern 
 provinces but effected no permanent settlement. The feudal 
 system continued to grow, and the inheritance by the sons of 
 the great vassals of their fiefs became an established rule. The 
 German, Italian and French portions of the empire fell apart 
 in 843. The provinces were treated as property, to be bestow- 
 ed and distributed according to the king's pleasure, and France 
 was divided to meet the varying conditions. The progress 
 made in the development of the inheritance of fiefs is indicated 
 by a capitulary of Charles the Bald in 877. 
 
 "If after our death any of our lieges moved by love for God 
 and our person desires to renounce the world, and if he have 
 a son or other relative capable of serving the public weal, let 
 him be free to transmit him his benefices and his honor accord- 
 
FRANCE 571 
 
 ing to his pleasure. If a count of this kingdom happen to 
 die and his son be about your person we will that our son, to- 
 gether with those of our lieges who may chance to be the 
 nearest relatives of the deceased count, as well as with the 
 other officers of the said countship, and the bishops of the 
 diocese wherein it is situated, shall provide for its administra- 
 tion until the death of the heretofore count shall have been 
 announced to us and we have been enabled to confer on the 
 son piesent at our court the honors wherewith his father was 
 invested." Thus, while the king nominally retained the right 
 to confer the fief at the death of the tenant, he recognized the 
 right of the heir to take it. During this period the power of 
 local administration and the ownership of land had become 
 consolidated. The counts, who under Charlemagne were 
 merely his local officers, had all become great landowners and 
 ruled their estates because they owned them. Political power 
 passed by inheritance with the land. Under the Carlovingians 
 the feudal system continued its development and by the end 
 of that dynasty the great lords and the heads of the church 
 represented the political power of the state. Subinfeudation 
 had become a part of the system, and the great lords had their 
 vassals holding considerable estates with other vassals below 
 them. The advantages of connection with the ruler of the 
 district led those holding allodial lands to give them to the 
 lord and receive them back as fiefs. By so doing the tenant 
 became a person of greater consideration, entitled to a larger 
 composition in case of injury, exempted from the confiscation 
 of his property for failure to appear in court or obey the 
 judge^s orders, and from trial by ordeal of boiling water for 
 petty crimes. The immediate vassal of the king could not be 
 compelled to testify in court against another vassal, nor to 
 swear in person at all, but only by the mouths of his own 
 vassals. Thus there was great advantage in holding directly 
 from the king. This process of converting the allodium, or 
 independent tenure of lands, into fiefs became most active 
 under the weak kings, when the local lords became the real 
 rulers, unrestrained by any central authority. It continued 
 under the third dynasty. As to much of the land, the church- 
 
572 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 men held the places of feudal lords, and archbishops, bishops 
 and abbots were temporal rulers, who took a leading part in 
 national affairs. 
 
 On the death of Louis the Sluggard, the last of the Carlov- 
 ingians, in 987, the lords spiritual and temporal met at Sanlis 
 and Adalberon, archbishop of Reims induced those present to 
 put off the choice of a king till a more general meeting could 
 be held, and to swear to the duke of Paris ''between his hands" 
 that in the meantime they would do nothing in the way of the 
 election of a king. About the last of June they reassembled 
 and, putting aside as unworthy Charles of Lorraine, a lineal 
 descendant of Charlemagne and uncle of the late King Louis, 
 on motion of the archbishop they chose Hugh Capet, count of 
 Paris, a descendant of that Count Eudes who had stoutly de- 
 fended Paris against the siege of the Northmen, as king. He 
 was thereupon proclaimed and crowned king by the metropoli- 
 tan. He was thus made king by the church and the feudal 
 lords, and the dynasty so established was a feudal one under 
 church influence. In return for kingly aid the church taught 
 the divine right of the king to rule and the doctrine of sub- 
 mission and obedience to his authority, no matter how unjustly 
 or oppressively exercised. 
 
 In the election of Capet the French clergy exhibited excep- 
 tional independence, for Pope John XVI sustained the claims 
 of Charles. The reign of Hugh Capet lasted only from 987 
 to 996. On his death his son Robert succeeded him, and he 
 and his son Henry and grandson Philip ruled till 1108. Capet 
 and his successors were great landowners and ruled as counts 
 of Paris over their estates and province. The kingly office 
 gave added prominence rather than a great increase of power. 
 The king had feudal superiority and precedence over his great 
 vassals, whom he had a right to call on to aid him in his wars, 
 but he could not pass the vassals by and command the follow- 
 ers under them. Within his own district the feudal lord 
 brooked no dictation as to the conduct of local affairs, even 
 from the king. The king's court, however, was the fountain 
 of honor and distinction, and kingly power, though not vig- 
 orously exercised during this period, was more than a shadow. 
 
FRANCE 573 
 
 This was a time of freedom from foreign wars. The vassals 
 fought their private wars and the king sometimes took part 
 in them. In the time of Capet there was some resistance to 
 his authority by followers of the Carlovingians, but they were 
 subdued. 
 
 That the common people felt the grinding oppression of the 
 system is evidenced by revolts of the peasants, one of which 
 occurred in Normandy and was suppressed with great barbar- 
 ity. The church, too, began to exhibit cruel jealousy of any 
 -questioning of its authority, and the burning of heretics be- 
 came one of its functions. The relations of king and vassals 
 are well illustrated by the aid afforded by King Henry I to 
 young William of Normandy, against his revolted vassals, aid- 
 ed by Guy of Burgundy, and later by the war between King 
 Henry and William in which the king was defeated by Wil- 
 liam in two battles. The king died soon after and William 
 appeared at the coronation of his son Philip, for whom he 
 fought against his revolted subjects. It may almost be said 
 that private war was so general and inseparable an incident of 
 the times that it did not imply real enmity between the 
 combatants. 
 
 This was the age when knighthood flourished. It was es- 
 sentially a military order of mounted and armored warriors. 
 The code of duty and honor, to which a knight was sworn, 
 exhibits a strange blending of pure Christian virtues and as- 
 pirations, with wars' savagery. Many different orders of 
 knighthood were formed during the crusades. In the earliest 
 stages knighthood was connected with the feudal system of 
 land tenure and implied the possession of a fief of sufficient 
 value to maintain the knight, supply him a horse and armor 
 and means to defray his expenses during the customary period 
 of knightly service in the wars of his over lord. There were 
 various methods of conferring knighthood. That deemed 
 most honorable was for valiant service, and conferred by the 
 over lord on the field of battle. The members of the knightly 
 orders of fighting priests, which were organized during the 
 crusades, were not necessarily holders of fiefs, or of any lands. 
 In course of time knighthood came to be conferred only on 
 
574 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 descendants of the nobility. The ceremony of investiture might 
 be purely military or a combination of both religious and mili- 
 tary rites. When conferred in times of peace with full re- 
 ligious ceremonies, the candidate for knighthood was required 
 to first purify himself in a bath and clothe himself in a white 
 tunic, symbolical of purity, a red robe, symbolical of the blood 
 he would shed for the faith, and a black coat, emblematic of 
 the death awaiting all men. He must fast for twenty-four 
 hours, then enter the church and spend a night in prayer. 
 After confession he received the communion, and often listen- 
 ed to a sermon on the duties of knighthood. He then ad- 
 vanced to the altar with the knight's sword hanging from his 
 neck. This the priest took off, blessed and replaced on his 
 neck. He then knelt before his superior lord and having been 
 duly questioned and made the required responses, received his 
 spurs, coat of mail, cuirass and sword and was dubbed knight 
 by receiving three blows from the lord with the flat of the 
 sword on his shoulder or neck. The knightly oath bound him 
 above all to be a bold and constant fighter, a fierce barbarian in 
 the service of his king, his overlord and the church, but to up- 
 hold the rights of widows, orphans and damsels, to injure nO' 
 one maliciously nor. fight for gain, but only for glory and 
 virtue, to guard the honor and rank of his comrades and do not 
 trespass against them, to be truthful and keep faith inviolably 
 with all the world and aid one another, to shun no danger, nor 
 take pay from any foreign prince, to live in order and disci- 
 pline when in command of troops, to faithfully defend females 
 in his charge and do them no evil, that being challenged to 
 equal combat he would not refuse to fight, that in the pursuit 
 of honor he would dare and do his utmost, "that above all 
 things he would be faithful, courteous and humble, and would 
 never be wanting to his word for any harm or loss that might 
 accrue to him." Had the knights generally strictly adhered to 
 these precepts, many of which breathe the purest and loftiest 
 sentiments, the world would have progressed rapidly from its 
 degraded state, but unfortunately the part most faithfully 'fol- 
 lowed was that which enjoined fighting and bloodshed. The 
 Christian virtues of truthfulness and protection to the weak 
 
I 
 
 FRANCE 575 
 
 were far too often neglected. Still this kinghtly code exer- 
 cised a profound influence on society. The times were a 
 strange mixture. In church and monastery might be found 
 zealots struggling to attain an ideal purity and holiness by 
 the sacrifice of all wordly comfort and enjoyment. Fasts, 
 vigils, scourgings and all manner of mortifications of the 
 flesh were self-inflicted and patiently endured to attain spirit- 
 ual purification, On the other hand some churches and mon- 
 asteries were the homes of ambitious men, who cunningly 
 sought wealth and power or lived as idle debauchees, secretly 
 scofl^ing at virtue, religion and morality. It was the age o'f 
 discord and of superstition. The estate of each petty noble 
 was essentially a separate sovereignty, from which the com- 
 mon herd were never allowed to wander. There was no inter- 
 course between those dwelling at a distance from each other, 
 unless they were of knightly rank. At the king's court and 
 at the tournaments the knights gathered for their fierce sports. 
 Education was wholly neglected among the common herd and 
 hardly less among the nobles; even among the monks many 
 were illiterate, and the learning of the clergy was sadly de- 
 ficient. Yet in some quiet cells there were earnest students 
 and patient scholars who sought light and truth with great 
 diligence. This was the age which brought forth William of 
 Normandy, the conqueror of England, a bastard son Oif Count 
 Robert, descended from Rolf the Northman, who had won 
 his foothold there about a century and a half before the inva- 
 sion of England. William's mother was the daughter of a 
 tanner, and it is probable that he owed much of his vigor and 
 ability to her. By reason of the seafaring habits of the Nor- 
 mans and their proximity to England, there was much inter- 
 course across the channel. On Sept. 27, 1066 William sailed 
 with his fleet to effect the conquest of England. How large 
 a force he took or in how many or how large ships he sailed 
 we have no definite record, but he won the battle of Hastings 
 and gained the English throne. Thus a vassal of the French 
 king became ruler of England. The claims of the Norman to 
 rights in France as a feudal lord became a prolific source of 
 contention and wars between the two countries, from which 
 little but evil resulted to the people of both. 
 
576 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Stirred by the preaching of Peter the Hermit the First Cru- 
 sade started in 1096 to free the Holy Land and clear the way 
 for the pilgrims. Since the age of Charlemagne there had 
 been no foreign wars to take the people of France into far dis- 
 tant lands. There was but little commerce, and the inter- 
 course between distant people was exceedingly limited. The 
 pilgrimages of the devout to Jerusalem afforded almost the 
 only occasion for gaining knowledge of foreign countries and 
 these of necessity were not in great number. The people of 
 France, always noted for their daring and generous impulses, 
 were profoundly moved by the accounts of the sufferings of 
 the pilgrims and the profanation of the Holy City by the in- 
 fidels. France furnished a large portion of the army for the 
 first crusade and its most noted and efficient leaders, Godfrey 
 of Bouillon, Raymond of Toulouse, Tancred de Hauteville 
 and other less noted men led the organized force, and followed 
 the great multitude which started as a mob and ended in dis- 
 aster. The impulse which moved the crusades was not moral 
 but religious. Nothing in history better illustrates the dif- 
 ference between morals and religion. The people were pro- 
 foundly stirred by the preaching of Peter and his details of 
 the desecration of the Holy City and of the wrongs and in- 
 dignities suffered by the many pilgrims, who sought miracu- 
 lous aid from a spot supposed to be possessed of peculiar vir- 
 tures because of its association with Jesus, the apostles and 
 saints. The purpose of the crusaders was war against the 
 infidels, for whose blood they thirsted. In passing through the 
 intermediate country to Constantinople, being unprovided with 
 supplies or money, they foraged as if in an enemy's country, 
 and were guilty of all manner oif brutality and excesses, so 
 that they were quite as much the dread of the European Chris- 
 tians as of the Moslems of Syria. After many delays, much 
 discord and sometimes bloodshed among them, the crusaders 
 on the 15th of July, 1099 took Jerusalem by assault and 
 slaughtered great numbers of the Mohammedans. . The lead- 
 ing purpose had been accomplished and Godfrey de Bouillon, 
 refusing the title of king, became Defender and Baron of the 
 Holy Sepulchre. Though the political and religious conse- 
 
FRANCE 577 
 
 quences of the crusades were of minor importance, the edu- 
 cational influences were very great. Not only from all parts 
 of France, but from Spain, England, Italy, Germany and in 
 fact the whole Christian world, the boldest and most enter- 
 prising knights were gathered to fight for the faith they pro- 
 fessed. They journeyed through strange lands and came in 
 contact with strange people. The Greeks of the eastern em- 
 pire were scarcely better known to them than the Turks, 
 Arabs and Egyptians, whom they came to fight. The rude 
 Christians saw the cities and gardens of the East. People 
 were moved to view a wider horizon and to long for knowl- 
 edge of distant lands and alien people. This is the greatest 
 good that ever results from distant wars. In spite of the 
 cruelty and bloodshed, the combatants learn to know and to 
 respect each other. Instead of the settled hatred of distant 
 enemies, some measure of respect and even of friendship re- 
 sults. Commerce ifounded on mutual benefit develops, and 
 stimulated by trade the industries of each land take on new 
 activities, and the peaceful intercourse of merchants slowly 
 but surely lays the foundation for lasting peace and mutual 
 good will. The scattered people of Europe, who from the fall 
 of the Roman power had dwelt in comparative isolation for 
 six centuries, were now made acquainted with each other. 
 Returning crusaders could tell from personal knowledge of 
 many strange people and distant lands. The impulse thus 
 given to thought and the desire for knowledge which it stimu- 
 lated were of the greatest importance and by far the most 
 valuable of all the results of the crusades. No country was 
 represented by more or better men in the Christian ranks 
 than France, and none profited more from the educational in- 
 fluence. The Christian rule in Jerusalem ended in 1187 and 
 was never productive of important political results. None of 
 the crowned heads took part in the First Crusade, but the sec- 
 ond in 1 147 brought out King Louis of France and the Ger- 
 man Emperor Conrad. Defeat and disaster met them. When 
 Saladin took Jerusalem in 1187, it must be said to his credit 
 that the barbarities exhibited by the Christians on their entry 
 were not repeated by the Mohammedans, and he even paid the 
 
578 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ransom of many of the captives, after allowing the soldiers to 
 march away. 
 
 Subsequent crusades were barren of substantial results, be- 
 yond the misery they caused and their continued educational 
 influence. Louis IX engaged in a disastrous expedition in 
 1248, spending the six following years in Egypt and Syria, 
 only to suffer defeat and fall a prisoner in the hands of the 
 enemy. After paying a heavy ransom and returning to France 
 he lost his life in an attack on Tunis. Louis is extolled as a 
 model prince and a real lover oif truth and justice. During 
 the years of peace he did much to advance the welfare of his 
 subjects. One of the greatest evils of the feudal system was 
 the exercise of judicial power by the baron without right of 
 appeal, no matter how great the disregard of the law. Louis 
 appointed itinerant judges and established courts superior to 
 those of the feudal lords, gave a right of appeal in the last 
 resort to himself and made a great law court of his parlia- 
 ment. He restricted feudal warfare among the barons, and 
 issued a code of laws known as the ''establishments of Saint 
 Louis." Though a despotic sovereign, he sought to rule by 
 fixed principles, which are generally conducive to order. In 
 his decisions he was governed by what he regarded as the law, 
 rather than by caprice or personal considerations. 
 
 The extreme of vice and cruelty which excessive religious 
 zeal may attain was exhibited in the crusade against the Albi- 
 gensians. Their crime was that by reason of the admixture of 
 descendants of Greeks, Romans, Jews and Gauls with Goths, 
 Arabs and traders from the Mediterranean ports, the people 
 had more of culture and refinement and more breadth of 
 knowledge and liberality of sentiment than the more ignorant 
 people of the north. This necessarily tended to a perception of 
 the narrowness and bigotry of the clergy and to a questioning 
 of the authority otf the priesthood. That suppositious crime, 
 heresy, developed under such conditions. The result was 
 that a crusade was preached with the sanction of the pope 
 against the Albigensians, and a vast army was gathered, not 
 only from other parts of France, but also from Germany, and 
 for fifteen years from 1208 to 1223 one of the most cruel 
 
FRANCE 579 
 
 wars and persecutions of history was waged by the orthodox 
 Christians against other more humane and enhghtened Chris- 
 tians. Though the pretext for this cruelty was rehgion and 
 the good of human souls, the power of the church was at 
 stake. The great religious corporation, of which the pope was 
 the head, was quite as jealous of its temporal ascendency, of 
 its revenues and its supervision over temporal rulers, as of 
 mere matters of belief. Bishoprics had in many places come 
 to be treated as inheritances, to be disposed of by will or other- 
 wise in accordance with the wish of the incumbent. The 
 period of feudal discord following the breaking up of the 
 empire of Charlemagne had been auspicious for the extension 
 of the power of the church, the crusades had inspired a feeling 
 of unity among the Christians, and made the Pope, as the head 
 of the church, by far the most conspicuous figure in Europe. 
 
 During the twelfth century France was split into many states 
 with ever changing combinations, due to wars, marriages and 
 alliances. The establishment of the Norman dynasty in Eng- 
 land induced a succession of wars in support of the claims of 
 English kings to French dominions. The growth of towns 
 and the incipient stages of the development of burghers' rights 
 had already begun in the reign of Philip Augustus, 1180 to 
 1223. He continued the privileges of forty-one communes, 
 which had been granted charters before his time, and estab- 
 lished forty-three new ones. The extremely rudimentary char- 
 acter of the government of Paris in the time of St. Louis is 
 shown by the fact that the same person was prefect, mayor 
 and receiver general under the name of provost, and that the 
 office was a purchasable one. Louis put an end to the sale of 
 the office and separated it from the receivership of the royal 
 domains. He also provided registers for the rules of the 
 various organizations of artisans, the masters of which ap- 
 peared before the provost to declare and have recorded their 
 regulations. Paris, though the French king's capital, was not 
 to be compared in importance as a manufacturing center to 
 the Flemish towns, which by the thirteenth century had taken 
 the lead in the manufacture of woolen stuffs, and were or- 
 ganized on republican principles, leagued together, with agen- 
 cies established in London and elsewhere. Their trade by the 
 
S8o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 year 1300 had become very extensive, and Flanders was the 
 richest and most populous country in Europe. In that year 
 Philip IV added it to France, but in 1302 met a crushing de- 
 feat at the hands of the revolted burghers. 
 
 It was in the reign of Philip IV Le Bel, that Pope Boniface 
 boldly claimed that the spiritual power included the temporal,, 
 and hence that the king was under his guidance. This Philip 
 denied, and a fierce controversy ensued which continued till 
 the death of Boniface. Clement V was elected through the 
 active efforts of Philip after the brief term of Benedict XI,, 
 and rewarded the French king for his aid. He established his 
 residence at Avignon, where the Holy See was maintained for 
 the next thirty years, largely under the domination of the 
 French kings. Philip also attacked the order of Knights 
 Templar, caused the persecution and burning of their grand 
 master and many leading men of the order, and confiscated 
 their treasures. Under his reign the kingly power was much 
 increased at the expense of the pope, the orders and the feudal 
 lords. In 13 15 Louis the Quarreler issued the following edict: 
 "Whereas, according to natural right, every one should be 
 born free, and whereas, by certain customs which from long 
 age have been introduced into and preserved to this day in our 
 kingdom, many persons amongst our common people have 
 fallen into bonds of slavery, which much displeaseth us, we 
 considering that our kingdom is called and named the kingdom 
 of the Free {Franks), and willing that the matter should 
 accord in verity with the name, . . . have by our grand coun- 
 cil decreed and do decree that generally throughout our whole 
 kingdom, such serfdom be reduced to freedom on fair and 
 suitable conditions, . . . and we will likewise that all other 
 lords who have bodymen (or serfs) do take example by us to 
 bring them to freedom." 
 
 It will be noted that this applied only to the seris of the 
 crown and did not have the effect of liberating those held 
 by other feudal lords. On his death he left only daughters. A 
 posthumous son lived only -five days. His brother Philip the 
 Long then convened a parliament, at which it was settled and 
 ever after remained the law, that "the laws and customs in- 
 violably observed among the Franks excluded daughters from 
 
FRANXE 581 
 
 the crown." This rule exc hided the claims of Edward III of 
 England, which were derived from his mother. 
 
 The development of the towns of France and the influence 
 exerted by them on the governmental affairs differs in some 
 respects from that of other countries. No town at any time 
 prior to the revolution of 1789 occupied a commanding posi- 
 tion as a municipality. During the worst period of feudal 
 anarchy the knights and their retainers were, to a great ex- 
 tent, robbers and non-producers. Such industries as their im- 
 mediate .followers pursued were mainly connected with the 
 land. Throughout France, and especially in the southern 
 provinces, considerable towns survived the inundations of the 
 barbarians and preserved some of the ancient Roman forms 
 of municipal government. When the bond which tied Charle- 
 magne's great empire together became so weak that the king 
 looked only to his feudal vassals for the government of their 
 territories in accordance with feudal customs, it appeared that 
 these were not adapted to the needs of manufacturers and 
 traders. On the contrary the feudal baron, who did not work 
 and who made war his business, became a robber of the more 
 industrious townspeople. His extortions were either by peace- 
 able exactions in some form of taxation or by forcible taking 
 of property by himself or his retainers. In a large number of 
 the principal towns the governing power was in the hands of 
 bishops or other church officials, who ruled often in a manner 
 similar to that of the lay nobility. The wrongs suffered by the 
 town folks at the hands of their local rulers led to concert of 
 action on the part of the burghers for self-protection and to 
 conflicts with the local barons. The outcome of these con- 
 flicts was some sort of an agreement as to the terms on which 
 the burghers might live, and many of these agreements took 
 the form of charters granted by the lord or bishop, and some 
 of them were submitted to and approved by the king. They 
 related solely to local affairs, and no general combination of 
 the scattered towns for their common protection was effected, 
 which could at any time be called national. Some of the 
 southern towns united for mutual protection, and the Flemish 
 towns formed real republican leagues, but the towns in the 
 interior struggled on separately. Such rights of local govern- 
 
582 EVOLUTIOX OF GOVERNMENTS AND LAWS 
 
 ment as they gained were assured only by their written char- 
 ters, and observed or not at the pleasure or according; to the 
 moral character of the lord. For violation of their rights the 
 only appeal against their oppressors was to the king. Such 
 appeals were often made, but the relief obtained depended on 
 the character of the king. The townsmen looked mainly to 
 peaceful industry for their livelihood, while the knights de- 
 spised all useful employments and made war and destruction 
 their chief business. A natural law of the utmost importance, 
 but often overlooked gave increase of numbers and of wealth 
 to the peaceful and industrious burghers. They were often 
 plundered and many of them killed by the warlike barons and 
 their retainers. They were themselves often contentious, tur- 
 bulent and bloody, yet their general purpose was to labor and 
 produce useful things. Theirs was a purpose superior morally 
 and economically to that of the Feudal aristocracy, and it 
 brought to them the reward of increased numbers and im- 
 portance. In process of time the kings found that the burgh- 
 ers could supply them with money and even with fighting men, 
 and the strife and jealousy between the feudal lords and the 
 burghers made it possible for the king by uniting with the 
 burghers to maintain his authority and increase his power over 
 both. At first the charters of the communes gave them power 
 only to regulate their local affairs by their own officers separ- 
 ately and in their own way, but under St. Louis and Philip 
 le Bel general regulations applicable to all the communes were 
 prescribed. Following this came a recognition of the right of 
 the towns through their representatives to be consulted in 
 matters affecting the general welfare of the kingdom, and in 
 1 302-1 308 and 13 14 Philip le Bel convoked the States-General 
 and summoned thereto "the deputies oif the good towns." In 
 1338 the states obtained from Philip of Valois assent to the 
 declaration, that "there should be no power to impose or levy 
 talliage in France, if urgent necessity did not require it, and 
 then only by grant of the people of the estates." 
 
 Thenceforth there was a connection between the towns and 
 the central authority by representation in the States-General, 
 when convened, and by the direct exercise of the king's author- 
 ity in the government of the towns, but there was no clear 
 
FRANCE 583 
 
 recognition of the rights of the burghers nor definite check on 
 the tyranny of either king or feudal lord. By the close of the 
 thirteenth century the feudal system had, as its natural pro- 
 ducts, sprinkled the country over with lords' castles with heavy 
 walls and moats to resist attacks, and walled towns. Feudal 
 wars and the lack of any general authority capable af afford- 
 ing protection to the weak made it necessary for the burghers 
 to defend their towns and the knights their castles. In 1329 
 Edward III of England, being thereto summoned, paid hom- 
 age to Philip of Valois, as king of France, for the duchy of 
 Aquitaine, but in 1337 Edward himself laid claim, though 
 without any very plausible ground, to the crown of France, 
 and commenced what is sometimes called the hundred years' 
 war. It was cruel and destructive and unproductive of benefit 
 to either combatant. Edward courted the aid of the Flemish 
 towns and alliances with disaffected nobles, from some of 
 whom he claimed and received homage as king of France. 
 Opposing claims of different vassals to the duchy of Brittany 
 led to the king of France supporting one and the king of Eng- 
 land another, and, though a truce had been agreed on between 
 the two kings, they fought in Brittany for their vassals, 
 though still claiming to observe the truce. This was spoken 
 of as the war of the three Joans, owing to the leading parts 
 taken by wives of the claimants to the dukedom, and exhibited 
 the mixture of fierceness and barbarity with occasional bursts 
 of generosity and virtue so characteristic of feudal society. 
 From 1347 to 1349 the "black death" took off a great part of 
 the population. In the early period of the hundreds years' war 
 the English gained advantages. At Crecy the French were 
 defeated and again at Poitiers, where on Sept. 19, 1356, John II 
 of France and his young son Philip were taken prisoners by 
 the English under the prince o.f Wales. They were treated as 
 distinguished guests, though the arbitrary execution of prison- 
 ers or obnoxious subjects was a frequent occurrence under 
 both sovereigns. Before this unfortunate battle, in 1355, John 
 had found it necessary to convoke the States-General, from 
 which he received liberal grants of supplies and the levy of 
 new forms of taxes that occasioned great discontent. After 
 the battle of Poitiers Tohn*s eldest son Charles assumed the 
 
584 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 direction of affairs under the title of lieutenant of the king and 
 summoned the States-General to meet at Paris on Oct. 15. 
 The clergy appeared in full force and about one hundred depu- 
 ties from the towns, but so many of the nobility had fallen in 
 the battle that the representation of that order was very light. 
 Each order at first held separate sessions, but they soon chose 
 commissioners from each to sit together. These numbered 
 eighty in all. Charles, who is styled the Dauphin, appointed 
 some of his officers to be present at their meetings, but they 
 refused to proceed in their presence and the officers thereupon 
 withdrew. After a few days they made their demands on 
 Charles ''that he should deprive of their offices such of the 
 king's councillors as they should point out, have them arrested, 
 and confiscate all their property." Twenty-two men, including 
 the chancellor, president of parliament, king's steward and 
 some officers of this household, were named. They also de- 
 manded that deputies called reformers should traverse the 
 provinces as a check on the royal officials, and that twenty- 
 eight delegates chosen from the three orders, ifour prelates, 
 twelve knights and twelve burgesses should be constantly 
 placed near the king's person "with power to do and order 
 everything in the kingdom just like the king himself, as well 
 for the purpose of appointing and removing public officers as 
 for other matters." The Dauphin asked time to consider and 
 left Paris for Metz. During his absence the populace of Paris 
 under the lead of Stephen Marcial became exasperated at an 
 order for the debasement of the coin and compelled its sus- 
 pension till the Dauphin's return, when they again rose and 
 forced him to accede to the principal demands made by the 
 States-General, and they were authorized to meet when they 
 pleased. At a subsequent session of the States-General in 
 March, 1357, a grand ordinance in sixty-one articles, enumer- 
 ating the grievances complained of and prescribing redress for 
 them, was drawn up, and a grand commission of thirty-six 
 was appointed to meet together at Paris for ordering the af- 
 fairs of the kingdom, whose orders all classes must obey. A 
 period of turbulence followed, during which the populace of 
 Paris took a leading part in public affairs. In February, 1558, 
 under the lead of Marcial they entered the palace and killed the 
 
FRANCE 585 
 
 marshals of Champagne and Normandy in the presence of the 
 Dauphin. Marcial soon became dictator at Paris, and the 
 Dauphin escaped to Senhs. He soon after convoked the 
 States-General to meet at Compiegne. In response to his call 
 the nobles and partisans of the murdered marshals turned out 
 and demanded the execution of the murderers. While matters 
 stood in this attitude there was an uprising of the peasants in 
 Normandy and other provinces. They took and demolished 
 many castles and killed many noblemen and their families. 
 Marcial sent out a body af three hundred burghers to aid in 
 taking the castle of Ermenonville, which was demolished and 
 all the nobility in it put to death. The nobility under the lead 
 of the Dauphin soon made common cause against the peasants, 
 who were overcome and great numbers of them massacred. 
 Marcial, as a last desperate expedient to save himself, called 
 in the aid of the English and admitted a body of them into the 
 city, but a quarrel broke out between them and the Parisians, 
 in which a number of the English were killed. On July 31, 
 1358, while attempting to open the gates of the city to admit 
 the king of Navarre and the English, Marcial was killed by the 
 Parisians. The crude attempt of Marcial and his coadjutators 
 to curb the tyranny of the king and nobility served only to 
 show the lack of capacity for organization and concerted ac- 
 tion on the part of the burghers and peasants. They were 
 utterly wanting in regard for the rights of others and that 
 self-restraint which is so essential to popular government. 
 The authority of kings and feudal despots may be supported 
 and maintained over an ignorant and debased multitude mere- 
 ly by armed force and regardless of mercy or justice, but, 
 as Montesquieu ably points out, popular government can only 
 rest securely on justice to each and to all. Marcial and Callet, 
 the leader of the peasants, started out in a just cause, but soon 
 adopted the methods of the authors of the wrongs of which 
 the people complained. If they cotild have restrained their 
 own passions and those of their followers, they might have 
 accomplished great good, but the people of that age were not 
 prepared for popular government. After Marcial's death, on 
 the return of the Dauphin, the popular leaders were taken and 
 summarily executed. 
 
586 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 In the fall of 1359 Edward invaded France. After roaming 
 about and pillaging the open country without laying seige to 
 any of the strong towns he concluded the treaty Bretigny, 
 May 1360, with the Dauphin, by which Aquitaine with en- 
 larged boundaries was acknowledged as an English province 
 freed from French sovereignty, and a ransom of 3,000,000 
 crowns was to be paid for King John's release. War over the 
 succession to the throne of Castile was participated in by the 
 French on one side and the English on the other, and in 1369 
 war was again declared by Charles V of France, which result- 
 ed in the recovery by the French of most of the territory ceded 
 by the treaty of Bretigny without any decisive battles. 
 Charles V died in 1380 and was succeeded by his son Charles 
 VI then only twelve years old. In his reign civil discord as 
 well as 'foreign war harassed and impoverished the country. 
 The Burgundian and Orleans factions, with the foreign and 
 domestic alliances peculiar to that age, kept up constant strife. 
 The Flemish cities, in spite of their wars, grew and preserved 
 much of their local freedom. In 141 5 the famous battle of 
 Azincourt was fought, in which the French sustained a crush- 
 ing defeat and the loss of a great host of the nobility. The 
 invention of gunpowder and changes in the military system, 
 from the armored knights fighting on horseback without order 
 or discipline, all serving for limited periods without pay in 
 accordance with 'feudal law, was gradually changing into a 
 more orderly system of paid and systematically organized 
 troops. Gunpowder deprived the armored knight of most of 
 his superiority over the unprotected and poorly armed foot 
 soldier. The war between English and French dragged on 
 under Charles VII, a very weak prince. The Burgundians 
 aided the English. French fortunes reached a very low ebb 
 till during the siege of Orleans by the English Joan of Arc 
 appeared and with a magnetic force unique in history roused 
 the spirit of the French and led them to victory. Though 
 Edward III might treat a worthless prince like King John, 
 while a prisoner, with such marked consideration as to make 
 him really enjoy his captivity, when the pure-minded and lofty 
 souled Joan fell into his hands, they burnt her as a witch and 
 
FRANCE 587 
 
 heretic in 1431. With the withdrawal of the Burgundians 
 from the English side the fortunes of the latter declined, and 
 they were forced to withdiaw from the interior. The long 
 period of internal discord and English dominion in France 
 drew toward its close. In 1439 the States-General were con- 
 vened by Charles VII and a start was made toward the organ- 
 ization of a standing army and a regular system of taxation 
 for its support. This aroused the hostility of the nobles, but 
 Charles persisted and organized fifteen companies of one hun- 
 dred lancers each which he set to work clearing the country 
 of the robbers with which it was infested. In 1453 the Eng- 
 lish were driven from all their possessions except Calais, 
 Havre and Guines Castle. The long struggle had tended to 
 develop a national sentiment in France, and all the brilliant 
 campaigns of the English were barren of profit. 
 
 After the close of the reign of Louis XI France entered on 
 a career of contests and diplomacy with foreign states, with 
 the details of which we are not concerned. Although the 
 administrative system had not reached its full development, 
 the structure of the French monarchy was already settled. 
 The king was the state, and his authority was backed by mili- 
 tary power. Under Charles VIII began those Italian wars, 
 based on a claim to Naples and Sicily, which were productive 
 of so much bloodshed and so little advantage. From this time 
 forward the field of military operations widens and France 
 plays a leading part among the nations of Europe. The dis- 
 tinct progress accomplished was the formation of a compact 
 state, developing an orderly though not a just system of in- 
 tercourse with and knowledge of the other states of Europe, 
 under which industry increased and knowledge was sought. 
 Not to a changing form or theory of government during this 
 period, but to other causes, must we look for the signs of prog- 
 ress and the growth of those sentiments of liberty and equality 
 which blazed forth in the eighteenth century. The feudal sys- 
 tem was the rule of local petty tyrants, who had no respect for, 
 nor sympathy with, any class of laboring or trading people. 
 The stratification of society was into the various feudal orders, 
 with the serfs at the base and the king at the head, a ruler 
 
588 EVOLUTION OF GOVERNMENTS AND L.\WS 
 
 whom his greatest subjects defied, and the churchmen pro- 
 fessing brotherhood, but rigorously ruled by church officials. 
 The enterprises carried on by feudal barons led to no discus- 
 sion of the principles of social organization. The establish- 
 ment of the power of the king on a more firm basis and the 
 opening of the era of wars between great states had taken 
 place by the reign of Francis I, 1524 to 1547. Then came 
 that revolution which affected Europe and especially France so 
 profoundly, the religious reformation. For centuries the Pope 
 and catholic clergy had enjoyed not merely the distinction of 
 rank in the religious world, but great temporal power and vast 
 revenues. Fondness of display and love of power had become 
 quite as characteristic of the popes and prelates as of the 
 temporal sovereigns. The creed was tenaciously clung to, but 
 the moral teachings of Christ were often forgotten. The sale 
 of indulgences to do wrong shocked the moral sense of great 
 numbers, in an age when great crimes were common. The 
 state of society in France in the sixteenth century was pecu- 
 liar. The government was in a stage of transition from the 
 anarchy of feudalism to a kingly despotism. The law was a 
 mixture of the Salic law of the Franks, the feudal principles 
 and the Roman civil law. Religion was no longer the ritual of 
 the church, but a faith for which men and women unhesi- 
 tatingly gave up all earthly possessions and even life itself. 
 Contemporaneously with the opening of the new world to 
 view and the discovery of a water route to India and the 
 east, there was an awakening to new conceptions of all things. 
 The desire to discover new truths, to look deeper into nature 
 and know more of man and of the moral obligations resting 
 on him, was growing. This desire prompted inquiry, which 
 at the same time produced turmoil and advancement. Though 
 without any system of public schools for the multitude, France 
 then occupied a leading position in its educational institu- 
 tions. The great University of Paris, which had its begin- 
 nings in the twelfth century, had developed into a large 
 institution, where many branches of learning were taught. 
 Other universities had also been established at Montpelier, 
 Toulouse, Orleans, Angers, Avignon, Cahors and Grenoble, 
 
FRA.XCE 589 
 
 some of which were in a flourishing condition. The civil law, 
 medicine and religion were taught. PYom all these schools 
 some light was diffused thrdugh the intellectual darkness, and 
 most important of all, a growing appetite for truth and an 
 increasing perception of the vices and immoralities of the age. 
 The printing press had come to give its powerful aid in 
 spreading information. While the high clergy were often 
 intent only on their own personal aggrandizement, there were 
 many students who in reading the scriptures discovered, not 
 merely the alluring promise of bliss in a life to come, but also 
 the practical lessons of morality and the sublime virtue of 
 the golden rule as a means of improving man's condition here 
 on earth. The sixteenth century exhibits, often in the same 
 individual as well as in the contentions of parties and factions, 
 the struggle between the old savagery and barbarism in their 
 most vicious forms, and conscience newly awakened to the 
 command to love your enemies. The religious struggle in 
 France was not between different states or sections of the 
 country, but between neighbors. Men either followed the 
 path of the reformation or adhered to the dogmas and the 
 mastery of the established church, according to their mental 
 bias and surrounding influences. It is difficult in this age to 
 comprehend the feelings of Protestants and Catholics in those 
 times. Protestants were appalled at the immoralities of the 
 church and believed that nothing but eternal damnation could 
 l3e meted out to those, who under the guise of religion were 
 guilty of so many misdeeds. Catholics felt that Protestants 
 were seeking to tear down that church to which they looked 
 for protection and safe passage into a life of bliss to come. 
 Generation after generation had lived and died in blissful 
 confidence in the ability of the priest to pass the dying soul 
 safely through purgatory into heaven, and the belief that 
 without the aid of the church man was without hope. Deadly 
 strife always develops hardness and cruelty, but religious 
 wars and persecutions are always more cruel and unrelenting 
 than others. 
 
 During the reign of Francis I there were eighty-one exe- 
 cutions for heresy in accordance with judicial decrees. In 
 
590 EVOLUTIOxN OF GOVERNMENTS AND LAWS 
 
 1545 a great number of Vaudians, estimated at 3,000, were 
 ruthlessly massacred because of their religious opinions. 
 During the twelve years reign of Henry II there were ninety- 
 seven convictions and executions for heresy. Though in some 
 cases the proceedings were very summary and execution fol- 
 lowed arrest quickly, in most the proceedings were deliberate^ 
 and it cannot be doubted that many people believed that 
 heresy was a crime meriting death. The study of the law 
 had made such progress that the lawyers were already an im- 
 portant factor in the state. The highest court was the parlia- 
 ment of Paris, which not only exercised judicial functions, 
 but was the medium through which all edicts of the King or 
 Pope having the efifect of laws were registered. Parliament 
 itself was not a law-making power, but it sometimes inter- 
 posed obstacles to obnoxious enactments by refusing to regis- 
 ter them. The kings overcame the difficulty by causing regis- 
 tration to be made without the sanction of Parliament, but 
 when in 1557 the papal bull was issued establishing the Inqui- 
 sition in France, the Parliament refused to register it. In 
 1559 this Parliament was composed of one hundred and thirty 
 members and in 1602 when Biron was condemned one hun- 
 dred and twenty-seven voted for the conviction. The religious 
 struggle attained its most fierce manifestation in the Massacre 
 of St. Bartholomews Eve on Aug. 24, 1572, when the Protes- 
 tants in great numbers were butchered by the order of Charles 
 IX. The number is variously estimated from 10,000 to 100,- 
 000. It was the purpose of Charles to exterminate the 
 Huguenots at one stroke and thus end the religious strife, but 
 in this he signally failed. The moral sense of the Catholics 
 was violently shocked, and all Christendom condemned in 
 unmeasured terms the bloody butchery. The religious strug- 
 gle continued throughout the reign of Charles IX, which ended 
 with his death in 1574, c\nd of his successor Henry III, 1574 
 to 1589. To the influence of Catharine de Medici, the Italian 
 queen mother, was charged many of the evils with which the 
 state was afflicted. In 1575 the Holy League, which had been 
 first conceived in 1562, came into prominence, and on the 
 other side the Protestants were not wanting in numbers or 
 
FRANCE 591 
 
 leadership. At Paris the CathoHc League partitioned the city 
 into five districts with a head man ifor each, who soon added 
 to their number eleven others. This formed the committee of 
 sixteen, which played an important part in the religious war. 
 In 1588, when Henry III undertook to garrison the city, this 
 committee, under the leadership of the Duke of Guise and 
 backed by the populace, barricaded the streets of Paris and 
 caused the king to seek safety in flight. On Oct. 6, 1588, the 
 States-General, composed of one hundred and eighty nobles, 
 one hundred and thirty- four clergymen and one hundred and 
 ninety-one members of the third estate, were convoked at 
 Blois. Nothing of importance was accomplished by the ses- 
 sion, which ended Jan. 10, 1589. The King caused the Duke 
 of Guise to be murdered, but the death of the leader did not 
 destroy the league. The Parliament of Paris sided with the 
 Leaguers, and the parliaments of other chief cities did like- 
 wise. The Duke of Mayenne, who succeeded to the Catholic 
 leadership, organized a council general of the League, com- 
 posed of forty members, for the general direction of its 
 affairs. The struggle between Catholic and Protestant was 
 popular in character and not merely the quarrel of leaders. 
 The league had its committee and was backed by the populace 
 at Paris. The Protestants on the other hand were asserting 
 their right to religious liberty, and in doing so were forced to 
 deny the temporal power of the king when exerted to compel 
 submission to the established form of worship. It was an 
 assertion of individual liberty, though without a clear con- 
 ception of the significance of the claim. 
 
 The assassination of Henry III by a fanatical monk made 
 Henry of Navarre, a Protestant, heir to the throne. The 
 Catholics were still largely in the majority and Henry, who 
 had been the recognized head of the Protestants, had a diffi- 
 cult task before him; but with the force of the sentiment of 
 loyalty to the legitimate heir to the throne and a wise policy 
 of toleration of religious differences, he accomplished good 
 for the state and the substantial restoration of domestic peace. 
 His principle of toleration was a principle of liberty of con- 
 science, religious thought and expression. The edict of 
 
592 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Nantes, which he pubUshed on April 13, 1598, was a great 
 stride forward, though it did not accord entire equahty or 
 freedom in reHgion. By it the Protestant form of worship in 
 the castles of the lords high justiciary, who numbered 3,500, 
 was allowed, and also in the castles of simple noblemen, pro- 
 vided the number present did not exceed thirty. The state 
 was charged with a provision of 165,000 livres for salaries 
 of Protestant ministers, and donations and legacies for their 
 support were permitted. The children of Protestants were 
 admitted to the schools and universities. The Parliament be- 
 ing intensely Catholic there was great difficulty in obtaining 
 justice by the Protestants, and a special court, called the edict 
 chamber, was established for the trial of causes in which they 
 were interested. Catholic judges could not sit in this court, 
 except with the consent of the parties. In the Parliaments of 
 Bordeaux, Toulouse and Grenoble, the edict chambers were 
 composed of two presidents, one Catholic and one Protestant, 
 and twelve councillors equally divided. The Protestants re- 
 tained control of the towns then in their possession, number- 
 ing great and small about two hundred, and their garrisons 
 and fortifications were maintained at the public charge. After 
 his accession to the throne Henry found it easier to rule as a 
 Catholic than as a Protestant, and in 1593 became a Catholic 
 and was received into the Church. He issued this edict as a 
 Catholic monarch for the pacification of his kingdom, and as 
 a measure of justice to his subjects. Henry is also credited 
 with a comprehensive plan for the pacification of all Europe 
 by confederating all the Christian states, Catholic, Luthern 
 and Calvanist, with equal rights. The plan contemplated in- 
 dependence in local affairs, the care for common interests 
 through central authority and the pacific settlement of all dis- 
 putes between states. The recent Hague conferences are 
 steps toward the realization of a world wide union of this 
 kind. The barbarism of a division of the continent into so 
 many hostile camps must some day be generally recognized 
 the simple remedy of efficient cooperation and combination for 
 the general good be adopted, and all the vast armies which 
 now sap the life of each nation and periodically spread death, 
 
FRANCE 593 
 
 destruction and misery over the land, be disbanded to aid in 
 promoting the general welfare. The curse of militarism may 
 be removed merely by the extension to national disputes of the 
 principle of the decision of controversies by reason and the 
 judgment of disinterested men, as controversies betv^een in- 
 dividuals and subdivisions of a state are now settled. In 
 Henry's foreign policy the principle of religious toleration 
 played an important part. To check the power of Austria he 
 allied Catholic France with Protestant Germany and England 
 against Spain and Austria. Under his rule there was a grow- 
 ing respect for law as well as an increased measure of liberty. 
 When he became convinced that Biron, who had long been a 
 favorite with him, plotted against his authority, instead of 
 directing his execution arbitrarily, as Charles IX had com- 
 manded that of Coligny and the Huguenots and Henry III 
 that of the Duke of Guise, he caused him to be publicly tried. 
 The inquiry lasted three weeks, and the one hundred and 
 twenty-seven judges in the Parliament of Paris unanimously 
 condemned him. Doubtless the accused stood at great disad- 
 vantage in a trial with the king as accuser, and the tribunal 
 could hardly be called an impartial one, but strict impartiality, 
 absolute freedom from all bias, is hardly to be found, unless 
 the matter tried is of utter indifference to the judge. It is 
 greatly to be regretted that in his private morals Henry was 
 conspicuous for weakness rather than strength of character, 
 yet in spite of this blemish he stands out as a truly great 
 public character, who labored earnestly and successfully to 
 protect the public good, not only of his own kingdom but of 
 all Europe. During the regency of Marie de Medici, widow 
 of Henry IV, and the reign of Louis XIII, Richelieu pro- 
 moted the system of absolutism, which attained its highest 
 stage under Louis XIV. The power of the feudal lords had 
 been waning for more than a century. Under the ministry of 
 Richelieu all eyes became steadily fixed on the king as the 
 fountain of all power in the state, and the ambitious nobles 
 were taught to seek advancement through the favor of the 
 king, rather than the power of their armed retainers. Though 
 Henry IV had had his councillors, no ministry with a distri- 
 
594 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 bution of well defined powers and functions had been estab- 
 lished. Nor did Richelieu develop such a system. His policy- 
 was directed toward the advancement of the kingly authority 
 at the expense o,i the nobility, and to the exercise of power 
 through officers appointed by the king for their fidelity, rather 
 than their rank. The Parliaments, of which at the accession 
 of Richelieu to power there were nine namely of Paris, Toul- 
 ouse, Grenoble, Bordeaux, Dijon, Rouen, Aix, Rennes and 
 Pau and to which he added Metz, at times manifested some 
 degree of independence and assumed powers to regulate tax- 
 ation and give advice to the king. In 1641 Louis XIII pub- 
 lished an edict prohibiting the Parliaments from interference 
 in affairs of administration and confining them strictly to 
 judicial functions. Though there were refusals to register 
 edicts by some of the Parliaments, opposition was crushed and 
 the king's unrestricted power enforced. There were, besides 
 the states general of the whole kingdom, states provincial in 
 Lauguedoc, Brittany, Burgundy, Provence, Dauphiny and 
 Pau, through which these districts levied the taxes on them- 
 selves. These states provincial were convoked by the king 
 and varied in their composition according to the district. 
 Richelieu's policy was to curtail the power of the states and 
 take away all restriction on the kings control of his finances. 
 He established in each province overseers of justice, police 
 and finance, chosen mostly from the burgesses, into whose 
 hands the whole administration of local affairs was committed. 
 By an edict of July 31, 1626, all the old castles of the great 
 nobles were demolished, and through these overseers the 
 powers of the nobility in local affairs were effectually cur- 
 tailed. Only twice in his time did Richelieu convoke the 
 Assembly of Notables, in 1625 and 1626. On Feb. 24, 1627, 
 the last Assembly separated and was never again convoked 
 till the revolution of 1789. 
 
 On the death of Richelieu another cardinal, Mazarin, an 
 Italian, took his place and, though he encountered intense 
 hostility and much internal commotion and external war, he 
 died with the full confidence of Louis XIV and as primier 
 wielded the actual power of the king. On his death in 1661 
 
FRANCE 595 
 
 Louis assumed the duties of his office and notified his min- 
 isters that they were only to act on his command. In his 
 reign was commenced the systematic distribution of admin- 
 istrative functions, with a secretary jfor foreign affairs, one 
 for war and the army and another for finance. Neither of 
 these had independent authority, but all worked under the 
 king. Louis XIV had ideas of order and method superior 
 to those of his predecessors. He labored to gather informa- 
 tion and to direct the action of all his officers. He was the 
 sole source of authority, and in the selection of his agents he 
 nought to humble rather than elevate the great folks. The 
 nobles however still held title to the land, and through its 
 ownership were able to grind the poor to starvation. Louis 
 with the aid of able ministers greatly curtailed the diversion 
 of moneys collected as taxes into private pockets. By this 
 means his revenues were increased and taxes lightened. The 
 beginnings of the actual exercise of kingly power by Louis 
 contained much that was good. He did much to develop an 
 orderly government, with a head laboring daily ;for the wel- 
 fare of the state, as he understood it. But Louis sought first 
 of all his own aggrandizement. He was lavish in the expendi- 
 tures of his court, but he built palaces ^.nd public works that 
 were both useful and ornamental. Like most despots how- 
 ever, he sought to extend his power over his neighbors. The 
 Netherlands, Germany, Spain and Italy were subjected to his 
 encroachments, and no sooner had his country begun to feel 
 the advantages of his firm rule than he plunged it into war. 
 The early period was one of glory (so called), for France. 
 Her boundaries were advanced, and she took her place as the 
 first power in Europe. But however great the successes in 
 battle the drain of men and money in great wars necessarily 
 impoverishes the nation, and the later years of the reign of 
 Louis were years of misery among the people and disaster, 
 defeat and loss of prestige in war. Religious toleration, 
 established by the edict of Nantes and which had done so 
 much to pacify France, came to an end in 1685, when Louis 
 revoked the edict and drove out the Huguenots, to become, 
 either soldiers in the armies of his enemies or industrious 
 
596 EVOLUTION OF GOVERNMENTS AND LlWVS 
 
 workers, furnishing money and supplies to them. The long- 
 reign of Louis was one of thoroughly recognized right of the 
 king to rule, freed from all dictation and interference by the 
 aristocracy. Obedience to him was considered the duty of 
 all. The plentitude of the king's power and his love of dis- 
 playing it drew to his court all the rich and high born of 
 the kingdom. The magnificence of his court was noted 
 throughout Europe. Nowhere else was there such an exhi- 
 bition of wealth and luxury. Internal peace was the marked 
 evidence of advancing views of social duty. Foreign war and 
 military glory still offered the most alluring field for the am- 
 bitious, yet the age was one of intellectual awakening and 
 the great names are not alone of soldiers, but of authors, 
 artists, scientists and philosophers. Though nothing like at- 
 tacks on the established system was tolerated, writers and 
 teachers did not fail to discover and declare some of the moral 
 truths bearing on the obligations of the ruler to the ruled. 
 Priests taught virtue a little more and persecuted heresy far 
 less. The luxury and magnificence of the court, to which all 
 the great landowners gathered, withdrew from their estates 
 whatever advantage might have resulted in their management 
 from the education and intelligence of the owners, and left 
 them to the care of impoverished peasants. To maintain 
 great houses at Paris and Versailles, buy the gorgeous and 
 expensive costumes of the time and give costly banquets, re- 
 quired the whole product of the estates. The peasants wha 
 did all the work were mercilessly robbed of the fruits of their 
 toil, in order that the butterflies at the palace might appear in 
 dazzling brilliancy. Order, obedience and law prevailed, but 
 applied law in its aggregate results meant monstrous injustice, 
 systematically and mercilessly enforced. Unfortunately this 
 is by far too true of all systems of human laws. The idle 
 favorites, who swarmed about the court fawning on the king 
 for favors, were mostly quite without merit. True there were 
 some such lofty natures as Fenelon, Pascal, Bossuet, Madame 
 de Sevigne, La Bruyere, Moliere, Corneille, Racine, La Fon- 
 taine and other thinkers and writers, who were more or less 
 about the court, whose plantings in the moral vineyard have 
 
FRANCE 597 
 
 borne good fruits, but the recipients of the great bulk of royal 
 bounty were worse than mere idlers. They were conspicuous 
 examples of the corruption of a despotic system, living not 
 merely useless, but debauched and vicious lives, not from the 
 bounty of a rich king as the historians usually state it, but 
 from the fruits of the labors of the needy poor, wrung from 
 them either by the public tax gatherers on pretense of pay- 
 ment for public service, or as the share of the produce be- 
 longing to a landowner through a most unjust legal theory 
 of ownership of the earth. Viewed at large the nation ex- 
 hibited a brilliant court, permeated with moral pestilence, and 
 a vast multitude of ignorant and spiritless toilers, who labored 
 and died in misery and degradation. Happiness had no 
 abiding place. At court all was a fever of hopes and fears, 
 hanging on the smiles and frowns of a king. 
 
 Though Louis was king till his death, and though he never 
 ceased to give personal attention to public affairs, the idea 
 contained in the memorable expression 'T am the state," 
 gained a constantly increasing force in his mind, till the wel- 
 fare of the people he should have served ceased to be a matter 
 of consideration, and France became in his eyes but a setting 
 to display his grandure and power. As his life drew towards 
 its close he witnessed without profit the necessary results of 
 his policy. The peasants, artisans and traders were impover- 
 ished and reduced in numbers by wars and oppressive burdens. 
 The court demanded increased favors to sustain its gaieties. 
 Foreign enemies combined against him, and his exhausted 
 armies retired before them. Lack of troops and of money 
 paralyzed the state, and famine and pestilence scourged the 
 people. 
 
 In 1 71 5 after reigning seventy-two years Louis XIV died, 
 leaving the crown to his great grandson, a child five years of 
 age. The will of the King, which made his illegitimate son, 
 the Duke of Maine, guardian of the young King, and ap- 
 pointed a council or regency, was promptly swept aside by 
 the Duke of Orleans, who, with the approbation of the Parlia- 
 ment of Paris and the populace", assumed the regency, freed 
 from the restrictions with which the late King sought to cir- 
 
598 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 cumscribe it. The regent attempted to organize a ministerial 
 system with six boards, for foreign affairs, army, navy, 
 church affairs, home affairs, and finance. To these were 
 afterward added one ifor commerce. At the head of these, 
 instead of men chosen on account of their fitness for work, 
 he selected persons of rank, under whom men of inferior 
 degree, but more capacity, were placed. The plan proved un- 
 successful through lack of merit in his appointees. The 
 scheme of Law to relieve the financial difficulties of the time, 
 which has met with such severe and oft repeated condemna- 
 tion, and which was productive of so many imaginary for- 
 tunes and so much real misery, yet had within it the idea, 
 which has since been often utilized, of substituting credit 
 paper for coin. His disastrous failure resulted more from 
 the avidity with which the people took his shares and turned 
 in their money, than from the inherent vice of the scheme. 
 Most of the business of today is transacted on the theory that 
 there is coin on deposit to pay credit balances due from banks 
 and other financial institutions. As a matter of fact there 
 is ordinarily about one dollar for every ten of debt in the 
 aggregate of the banks, but this in ordinary times is sufficient. 
 Confidence now supplies the place of coin. In Laws time 
 confidence was excessive at first, but the panic quickly (fol- 
 lowed, and against panic there is no security. The Mississippi 
 company might have been given a basis of real value equal 
 to the wildest dream of Law, but it was in fact but a bubble 
 too frail to stand the first prick of criticism. 
 
 In 1724 an edict was issued in the name of the young 
 King, ostensibly as a tribute to the memory and to carry out 
 the design of Louis XIV to extinguish heresy. This edict 
 condemned "Preachers to the penalty of death, their accom- 
 plices to the galleys for life, and women to be shaved and 
 imprisoned for life. Confiscation of property; parents who 
 shall not have baptism administered to their children within 
 twenty-four hours and see that they attend regularly the 
 catechism and the schools, to fines and such sums as they 
 may amount to together, even to greater penalties. Mid- 
 wives, physicians, surgeons, apothecaries, domestics, relatives, 
 
FRANCE 599 
 
 who shall not notify the parish priests of births or illnesses, to 
 fines. Persons who shall exhort the sick, to the galleys or 
 imprisonment for life according to sex; confiscation of prop- 
 erty. The sick who shall refuse the sacraments if they re- 
 cover, to banishment for life; if they die, to be dragged on 
 a hurdle." Notwithstanding this savage language the blood- 
 thirsty spirit of St. Bartholomews Eve no longer prevailed in 
 the land, and there was little disposition to rigorously enforce 
 this edict. It was only here and there that its barbarities were 
 carried into effect. The general sentiment of the people had 
 moved forward to higher ground. Louis XV exhibited in 
 marked degree the inherent weakness and vice of absolute rule. 
 He was indolent and voluptuous, though not cruel as despots 
 go. It is always impossibe for a single man to know the 
 needs of a great country, no matter how energetic and earnest 
 he may be, but when that man is inert the state is left to drift, 
 and always drifts into confusion and misfortune. Though 
 France coveted dominion in India and America, there was no 
 strong combination of vigorous men working in concert to 
 maintain it. An idle king and ministers, whose main purpK>se 
 was to live in ease and luxury, neglected giving needed sup- 
 port to the adventurous spirits, who labored to extend French 
 power, trade and influence in the east and west. England 
 with its navy had become master of the sea, and a dissolute 
 court had not the foresight and self-denial to expend the 
 revenue in building a navy, but it was squandered in luxurious 
 living. India, Canada and the valley of the Mississippi were 
 lost, and passed under the rule of its great rival, England. 
 Continental wars wasted blood and treasure without profit. 
 The Seven Years' war, formally declared by France against 
 England in January 1756, involved before its conclusion Aus- 
 tria, Prussia, Russia, Spain and Italy and, though fought main- 
 ly in Germany, impoverished and exhausted all Europe. Prus- 
 sia bore its heaviest brunt and Frederick the Great estimated 
 that the participants lost 800,000 men. The French court 
 is well described by Montesquieu. 
 
 "Ambition amidst indolence, baseness amidst pride, the de- 
 sire to grow rich without toil, aversion from truth, flattery, 
 
6oo EVOLUTION OF GOVERNMENTS AND LAWS 
 
 treason, perfidy, neglect of all engagements, contempt for the 
 duties of a citizen, fear of virtue in the prince, hope in his 
 weakness, and more than all that, the ridicule constantly 
 thrown on virtue form, I trow, the characteristics of the 
 greatest number of courtiers, distinctive in all places and at 
 all times." 
 
 The very firmness with which the doctrine of absolutism 
 had been riveted on the French people, under a weak and 
 indolent monarch such as Louis XV, afforded the example 
 and the opportunity for successful attack upon it. King and 
 court were morally and intellectually weak, but there was 
 growing strength among the people. Students and philoso- 
 phers wete already looking behind and beyond the written 
 edicts, canons and decrees, for the living truth as the only 
 just basis of authority. Enlarged intercourse with the people 
 of other European states, with the new world in America and 
 the old in India and the east, stimulated inquiry and research 
 into every field of knowledge. There were many active brains 
 in France busily at work. Montesquieu, Buffon, Voltaire, 
 Rousseau, Diderot, Alembert, Fontenelle are great names. 
 In seeking new truth they discovered old error. The falsity 
 of the claims to dominion over mens thoughts and consciences, 
 their lives and property, became apparent. The ;falsity of the 
 claim of superiority, which had so long supported the king 
 and those who thronged his court, could no longer be con- 
 cealed. Vice and immorality appeared as such though prac- 
 ticed by kings, cardinals and courtiers. The courts too, where 
 questions of right were daily discussed, though blinded by 
 adherence to established rules by which they were bound, 
 whether right or wrong, at least perceived that the king ruled 
 only by force of law, and that he too was therefore inferior to 
 law. The first internal struggle leading up to the great revo- 
 lution was with the Parliaments and over questions of taxa- 
 tion. This led to the arrest of the judges and finally to the 
 dissolution of the Parliaments and the complete reorganiza- 
 tion of the judiciary in 1771. Louis brooked no questioning 
 of his power. He had said to the Parliament of Paris, "The 
 magistracy does not form a body or order separate from the 
 
FRANCE 6oi 
 
 three orders of the kingdom, the magistrates are my officers. 
 In my person alone resides the sovereign power, of which the 
 special characteristic is the spirit of counsel, justice and 
 reason ; it is from me alone that my courts have their existence 
 and authority." How little did he understand his own weak- 
 ness and the growing strength and increasing knowledge of 
 the people. 
 
 He died in 1774, and his grandson Louis XVI at the age 
 of twenty came to the throne with Maria Antionette, daughter 
 of Maria Theresa of Austria, as his queen. He was a weak 
 but kindly man, neither great or strong enough to direct the 
 affairs of so great a state. He had the fortune to call to his 
 aid some strong and honest ministers, who introduced re- 
 forms in the finances beneficial to the state, but correspond- 
 ingly destructive of the system by which the court favorites 
 obtained their greatest incomes. Turgot first and then Necker 
 were able men, who sought to do the country honest service; 
 but the corrupt courtiers gave them no rest and finally ob- 
 tained their dismissal. The American Revolution, following 
 on the discussions of such writers as Voltaire and Rousseau, 
 produced a profound impression on the public mind. The 
 opportunity for checking the growing ascendency of Eng- 
 land, even though to do so required an alliance with rebels, 
 who in declaring their independence had denied the doctrine 
 of the divine right of kings and in its place asserted that all 
 governments derive their just powers from the consent of 
 the governed, was too tempting to be neglected. Bourbon 
 France and Spain, exponents of the doctrine of unlimited 
 monarchy, joined forces with the freemen of America against 
 England. The result in America was the birth of a great 
 republic, which became the model of all the states of the new 
 world. Not less profound was the impulse given to the grow- 
 ing conceptions of liberty in France. Already disgusted with 
 its decaying despotism and longing ;for a new national life, 
 the nation seized with avidity the inspiration and sought at 
 one bound to gain the lofty pinnacle of "liberty, equality and 
 fraternity." The King was a reformer but without much 
 knowledge of affairs or steadiness of purpose. At the in- 
 
6o2 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 stance of Necker he abolished mortmain and serfdom on the 
 royal estates, put an end to the preliminary tortures to which 
 defendants were put by the soft name of the ''preparatory 
 question" and caused more humane treatment of those con- 
 fined in prisons. 
 
 The age of intrigue for mere power had passed, and the 
 love of wealth and display was the overmastering passion of 
 courtiers. Financial difficulties, arising from the inordinate 
 demands for money to waste in vain display rather than for 
 legitimate governmental uses, were sources of anxiety to the 
 King and his ministers. The nation was vitally interested in 
 the reforms proposed by Turgot and Necker, but the favorites 
 were equally interested in defeating them, and were an active 
 force. Public sentiment was without coherence or steadiness. 
 The court constantly called for more money. The people re- 
 sisted increased taxation. On Dec. 29, 1786, Louis announced 
 in council that he would convoke an assembly of notables on 
 January 29 "to communicate to them my views for the relief 
 of my people, the ordering of the finances and the reforma- 
 tion of abuses." The session did not open till Feb. 22, 1787. 
 It was not a representative body, but composed of one hun- 
 dred and forty-four members, all named by the King as fol- 
 lows: seven princes of the blood royal, fourteen archbishops 
 and bishops, thirty-six dukes and peers, twelve councillors of 
 state and masters of requests, thirty-eight judges, twelve depu- 
 ties of states districts and twenty-five municipal officers. 
 When this assembly convened the fact that France had out- 
 grown despotism became apparent. The public demanded an 
 account of the conduct of affairs, and to know what became 
 of the revenue before undertaking to provide a greater one. 
 An annual deficit of 100,000,000 livres a year had been stead- 
 ily forcing the treasury into deeper and deeper embarassment. 
 The session closed on May 25, 1787, without any other result 
 than increased publicity of the financial situation and a more 
 widespread understanding of the nature and extent of the 
 abuses which prevailed and by which the privileged nobles, 
 tax farmers, monopolists ♦and court favorities grew rich at 
 the expense of all the industrial classes. The Assembly left 
 
FRANCE ' 603 
 
 the King to deal with his difficulties the same as before. His 
 edicts relating- to the stamp tax and territorial subvention 
 were registered, and then the registration was declared null 
 by the Parliament of Paris. The King sent the Parliament 
 away to Troyes. The growth of the idea that all were sub- 
 ject to law was expressed by a decree of the Parliament, in 
 which it was said, ''The monarchy would be transfigured into 
 a despotic form if ministry could dispose of persons by sealed 
 letters, property by beds of justice, criminal matters by change 
 of venue or cassation and suspend the course of justice by 
 special banishments or arbitrary removals." Though the prin- 
 ciples thus declared may meet approval, they were invoked to 
 sustain privilege rather than to enforce justice. But the idea 
 that the land and the people belonged to and existed for the 
 king and his court was fast being supplanted by the better one 
 that the government, whatever its form, must serve the people 
 and promote their welfare. Though we read so much of the 
 difficulties with which the government was surrounded, those 
 difficulties did not have their basis either in exceptionally bad 
 natural or business conditions, nor in the ambitions of rebel- 
 lious subjects, but in the fact that the nation had, outgrown 
 its governmental system and demanded better principles and 
 more efficient execution of them. The nation clamored for 
 the States-General, the ancient representative body of the 
 kingdom. On Aug. 6, 1888, a decree was promulgated for 
 their convocation on the ensuing ist of May. There was much 
 agitation of the questions as to their composition and the 
 representation and mode of choice of the Third Estate, the 
 only representative of popular elements. An Assembly of 
 Notables was again convened Nov. 6, 1788, but adjourned on 
 December 12 without accomplishing more than the discussion 
 and agitation of the general subject of governmental and fi- 
 nancial reform. The composition of the States-General was 
 finally determined by the King as follows, i. There should be 
 at least i ,000 deputies. 2. That the number should be formed 
 as nearly as possible in compound ratio to the population and 
 taxes of each baliwick. 3. That the number of deputies of 
 the Third Estate should be equal to that of the two other orders 
 
6o4 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 together. They were convoked for April 27, 1 789. Later the 
 number was fixed at 1,200; citizens who were taxpayers were 
 declared electors. The elections caused a ferment throughout 
 the provinces, the like of which had never before been known 
 in any country. The King desired to effect reforms, but was 
 without a definite policy. He had called together representa- 
 tives of the nation to consider and provide for its needs with 
 no further preparation than a partial understanding of the 
 gross abuses of the decaying monarchy. Naturally and logi- 
 cally the first inquiry was directed toward ascertaining what 
 was wrong. The one overshadowing fact disclosed to • even 
 dull minds was the unmerited power and privileges of the 
 nobles and high clergy and the lavish extravagance of the 
 court. Bad harvests aggravated the distress of the poor, but 
 never before had so much been done by the king and the rich 
 to relieve them. Charity did not satisfy, when the poor la- 
 borer was taught by the agitators that his rights were equal 
 to those of the idle court favorites. 
 
 Though it is not often mentioned, the American colonists 
 derived their ideas of personal liberty and individual dignity 
 to some extent from the Indians, who absolutely denied the 
 authority of rulers. The dissemination of American ideas, 
 thus taken from the savages, among a people of most lively 
 sensibilities, was greatly facilitated by the students and ad- 
 mirers of Greek and Roman liberty. The philosophers had 
 prepared the way for the repudiation of monarchial corrup- 
 tion. The nation was ready to condemn the bad government 
 and the false theory of class superiority and robbery with 
 which it was oppressed, but it was not prepared to construct 
 a new system. When the States-General convened, separate 
 rooms were provided for the noblesse and the clergy, but the 
 Third Estate, equal in numbers to both, had only the throne 
 room, intended for the joint meetings of the three orders, in 
 which to assemble. The verification of credentials of mem- 
 bers was left to the assembly itself, as well as the question 
 whether the sittings should be in one or separate chambers. 
 The Third Estate, representing the common people, was in 
 possession of the assembly room, and after inviting the other 
 
FRANCE 605 
 
 orders to attend proceeded to determine who were en- 
 titled to seats, admitting such of the inferior clergy and no- 
 bility as chose to come in. They chose the name of National 
 Assembly, by which this most memorable gathering is known 
 in history. When the session was opened by the King at 
 Versailles on May 5, there were about 1,100 deputies present, 
 of whom 595 belonged to the Third Estate; and of these 
 three-fifths were lawyers. 
 
 The States-General had been summoned by the King to aid 
 him with money and to still the complaints against abuses,, 
 but when convened it proceeded to act, not as an aid to a 
 sovereign king, but as the representative of a sovereign peo- 
 ple. On June 20, after having undertaken to annual all the 
 decrees of the Assembly, the King caused the doors of their 
 hall to be closed and decreed a royal session on the 22nd. 
 The Assembly met nevertheless in a tennis court and passed 
 a decree, "That the National Assembly considering itself 
 called to determine the constitution of the kingdom, to effect 
 the regeneration of public order, and to uphold the true prin- 
 ciples of the monarchy, declaring that nothing shall prevent 
 its continuing its deliberations, and that wherever its members 
 are united, there is the National Assembly; Decrees that all 
 the members of this Assembly shall this instant take a solemn 
 oath never to separate, until the constitution of the kingdom 
 be established and confirmed upon solid foundation." All the 
 deputies but one took the oath. On the 22nd, the royal ses- 
 sion not taking place, they assembled in the church of St. 
 Louis, where the majority of the representatives of the clergy 
 joined them, one hundred iorty-eight in number. On the 23rd 
 the King opened the session with a speech and caused a decla- 
 ration to be read declaring null all acts of the Assembly and 
 limiting their deliberations to certain subjects, mainly relating 
 to taxation; adding, "None of your projects, none of your 
 ordinances, can have the authority of law without my special 
 approbation. I command you, gentlemen, to adjourn im- 
 mediately, and to appear to-morrow morning, each in the 
 chamber appropriated to his order, to resume there the usual 
 sessions." The king left, followed by the nobility and part 
 
6o6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of the clergy, but the third estate remained. The grand 
 master of ceremonies said to BailHe, president of the Assem- 
 bly, "Monsieur you have heard the King's orders"? Baillie 
 replied "I cannot dissolve the Assembly until it has deliberated 
 upon the matter. I believe that the assembled nation can re- 
 ceive no command." This was revolution. It denied the 
 sovereignty of the King. On the 24th, forty-seven noble depu- 
 ties v^ith the Duke of Orleans at their head took seats in the 
 Assembly, and on the 27th the King, overawed by the popular 
 tumult at Paris and the desertion of the French guard, who 
 sided with the populace, to secure his own safety requested 
 the nobles to repair to the common hall, which they did. 
 
 Who can adequately describe the awakening of a great na- 
 tion after many centuries of tyranny, maintained in accord- 
 ance with rules called laws, which their teachers both spiritual 
 and temporal have taught the people to obey as of divine 
 origin and sanction, to a realization of the monstrous falsity 
 of the whole system. The idols were broken and found to be 
 but base impostures. The ferment spread throughout the 
 nation as the great leaders of the Assembly boldly declared the 
 self-evident truths of liberty and justice. The fruits of the 
 teachings oi Montesquieu, Fenelon, Rousseau and Voltaire 
 ripened all at once in the hot house of the Assembly. In 
 Paris the most exalted aspirations of pure patriots for an 
 age of justice cooperated with the hatred and savagery of the 
 dregs of society, who called for vengeance on those they 
 deemed the cause of their degradation. The Assembly led 
 the march of ideas grandly at Versailles, but the ferment 
 went on in the multitude at Paris. The courtiers looked to 
 the army to preserve the King's authority and protect them. 
 The revolutionary forces in Paris organized. There were the 
 electors, the Orleans party and the Breton, afterwards called 
 the Jacobin Club. On July 11 the King dismissed Necker, 
 the only minister in whom the people had confidence. On 
 the fourteenth of July the Parisians broke into the Dome des 
 Invalides, seized 2,800 guns and stormed the hated Bastile, 
 the prison fortress, which stood as a symbol of tyranny, and 
 at once proceeded to demolish it. There were lives lost iii 
 
FRANCE 607 
 
 the combat and faithless executions of prisoners taken, whose 
 blood the mob demanded. The national guard was organized 
 by authority of the Assembly and the districts of Paris with 
 La Fayette at its head. Uprisings were not confined to Paris 
 but spread throughout the provinces and were everywhere di- 
 rected against those who profited by the abuses of the old 
 regime. 
 
 The Assembly proceeded with its deliberations, which 
 reached a climax on August 4, expressing at one session the 
 condemnation of a vast system of oppression. From 161 4 till 
 1 789 the nation had not been consulted in regard to public af- 
 fairs, despotism and privilege had flourished at the expense 
 of the people. No wonder that the King and the representa- 
 tives of the people were so wide apart in their purposes. The 
 King looked only from the standpoint of long recognized 
 power. The assembly was profoundly conscious o,f the gross 
 and manifold abuses of that power. The King wished in- 
 creased revenues and tranquil submission to authority. The 
 people demanded relief from excessive burdens and some 
 measure of justice. The many lawyers of the Assembly un- 
 derstood the laws and appreciated the inequity of them. 
 Many of the nobility and clergy recognized the moral inde- 
 fensibility of their great privileges. On the evening of this 
 memorable session the Viscount de Noailles, speaking to the 
 demand of the government that a decree be passed to put an 
 end to the disturbances in the provinces by inviting the people 
 to obey the ancient laws till modified, declared that the only 
 means of restoring peace was to decree immediately a pro- 
 portional levy of taxes on all citizens ratably, the adjustment 
 Oif farm rents on the basis of income and the abolition of 
 statute labor, mortmain and all personal servitude. This blow 
 at feudal privilege was seconded by the Duke d' Aiguillon, the 
 richest nobleman of France. No voice was raised in defense 
 of feudal injustice. Then it was demanded that the recipients 
 of royal favors, the court seigniors, should bear their part. 
 The Dukes of Guiche and Mortemart replied that they were 
 ready to renounce the king's benefits and share the common 
 burdens. Then privilege after privilege was attacked in rapid 
 
6o8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 succession. Employments were opened to all citizens alike^ 
 and penalties for crime were made the same to all classes. 
 Feudal courts, through which the nobles were judges over 
 their vassals, were abolished. Hunting rights, enjoyed only 
 by the nobility, were opened to all. Then came the turn of 
 the clergy; the cures were shorn of their perquisites, and the 
 bishops of their titles. Having disposed of the privileges of 
 the nobles and clergy, those o,f the provinces and cities were 
 brushed away, and the deputies for Brittany, Provence and 
 Languedoc, and for Paris, Marseilles, Bordeaux and Lyons, 
 renounced all their great advantages with respect to imposts. 
 Then came the suppression of the privileges of freemen and 
 tradesmen in the monopoly of work. Thus in a single night 
 sitting from 8 p. m. to 2 a. m. fell the whole system of 
 privileges, and in its place stood the great French nation com- 
 posed of citizens, each with equal rights before the law. Never 
 in all time was an equal number of abuses exposed and laid 
 low by any representative of a nation at a single session.. 
 Radical, thorough and far-reaching as these measures were,, 
 they were all clearly and unqualifiedly right, and this accounts 
 for the celerity with which each abuse ifell in its turn. 
 
 On the twenty-sixth of the same month the great work of 
 the fourth was supplemented by the adoption of the following 
 Declaration of the Rights of the Man and of the Citizen, 
 "i. Men are born and remain free and equal in their rights. 
 2. These rights are : liberty, property, safety and resistance 
 to oppression. 3. The principle of all sovereignty resides in 
 the nation. No body, no individual can exercise authority 
 not emanating directly from it. 4. Liberty consists in the 
 power to do all that which does not injure others. 5. Law 
 has the right to forbid only actions detrimental to society. 
 6. Law is the expression of the general will. All citizens 
 have the right to concur personally or through their repre- 
 sentatives in its enactment. It should be the same ifor all, 
 whether it protect or whether it punish. All citizens being 
 equal in its eyes, are equally admissible to all dignities, public 
 places and employments, according to their capacity, their 
 virtue and their talents. 7. No man can be accused, arrested 
 
FRANCE 609 
 
 or imprisoned save in cases determined by law and according 
 to the forms it has prescribed. 8. The law should establish 
 only penalties strictly and evidently necessary, and no one 
 can be punished save in virtue of a law established and pro- 
 mulgated before the offense ^nd legally applied. 9. Every 
 man being presumed innocent until he has been proven guilty, 
 if it is judged indispensable to arrest him., every rigor not 
 necessary to secure his person should be severely reproved 
 by the law. 10. No one shall be disquieted on account of his 
 opinions, even his religious ones, provided their manifestation 
 does not disturb the public order established by law. 1 1 . The 
 free communication of thoughts and opinions is one of the 
 most precious rights of man. Every citizen can therefore 
 speak, write and print freely, except he abuse his liberty in 
 cases determined by law. 12. The guaranty of the rights of 
 the man and the citizen necessitates a public force. 13. For 
 the maintenance of the public force and for the expenses of 
 administration, a general tax is indispensable. It shall be 
 equally divided among all citizens, in proportion to their 
 ability. 14. All citizens have the right to aver of themselves 
 or through their representatives the necessity of the public 
 tax, to freely consent to it, to watch over its distribution, to 
 determine its quota, its assessment its collection and its dura- 
 tion. 15. Society has the right to demand of every public 
 agent an account of his administration. 16. Every society in 
 which the guaranty of rights is not assured, nor the division 
 of authority determined, has no constitution. 17. Property 
 being an inviolable and sacred right no one can be deprived of 
 it, unless when public necessity legally averred, evidently de- 
 mands it, and under the condition of a just and previously ar- 
 ranged indemnity."^ This was the grandest chart of liberty 
 and justice ever proclaimed, but the struggle to enforce its 
 precepts was yet to come. To give form to a reorganization 
 of society, which should secure the enjoyment of these prin- 
 ciples, was a task of far greater difficulty than to formulate 
 and declare them. The heart of the nation responded ad- 
 mirably to the lofty sentiments of the Assembly, and, though 
 
 * Martin, 1-60. 
 
6io EVOLUTION OF GOVERNMENTS AND LAWS 
 
 there were conflicts in various quarters, the desire for a new- 
 order of things was general. Everywhere the people pro- 
 ceeded to reconstruct and organize. The cities chose their 
 magistrates, and the national guard was organized through- 
 out the provinces. The Assembly undertook to reconstruct 
 the whole system of government. The old Parliaments were 
 abolished and a graded system of courts, from justices of the 
 peace with jurisdiction in petty cases to a court of cassation 
 with jurisdiction for the correction of errors of law over the 
 whole nation, was devised. Intermediate were the district 
 courts, composed of judges elected by the people. Jury trial 
 was provided for in criminal cases. Commercial tribunals 
 for the merchants were also established. In place of the 
 ancient thirty-two provinces the country was divided into 
 eighty-four departments, each of which was divided into dis- 
 tricts and these into cantons. Primary assemblies were to be 
 held in the cantons, which were to choose members of the de- 
 partmental assembly, and these were to name the members of 
 the National Assembly. The suffrage was restricted to citizens 
 twenty-five years of age, who had lived one year in the coun- 
 try, paid a direct tax amounting to three days labor and who 
 were not hired servants. Local self-government was provided 
 through representative bodies in the cantons, districts and 
 departments. The king had the right to suspend local ad- 
 ministrations not in accordance with his orders for the exe- 
 cution of the laws, but subject to confirmation or abrogation 
 by the Assembly. 
 
 The spontaneous movement of the people in the direction 
 of reorganization did not stop with the choice of local of^cers 
 and the organization of the guard. To defend against law- 
 less bands and apprehended dangers they formed leagues one 
 with another. This movement began in September 1789 and 
 continued till the Federation spread throughout all France as 
 a pledge and bond of concord and union. On July 14, 1790, 
 the anniversary of the taking of the Bastile, a grand festival 
 was held at Paris, attended by 15,000 deputies representing 
 the national guard and 11,000 soldiers and sailors from the 
 army and navy. The event was a joyous one. La Fayette in 
 
FRANCE 6ii 
 
 the name of the national guard took the civic oath, and the 
 King said from his throne, "I King of the French, swear to up- 
 hold the constitution decreed by the National Assembly and 
 accepted by me." A great banquet and fete followed. The 
 revolution seemed to have been accomplished, and the spirit 
 of concord and fraternity prevailed everywhere. This trans- 
 port of lofty sentiment presented a spectacle not to be decried 
 because of the terrible days that were to come. It was a 
 day's realization of a possible future, only to be made perma- 
 nent by a long struggle and much suffering. In December 
 1789, in order to supply funds for the pressing necessity of 
 the state, it was resolved to sell the lands and buildings be- 
 longing to the Crown, — except the palaces and forests, — and 
 part of the church property which had been declared to belong 
 to the nation ; but as this would require time, negotiable bonds 
 amounting to 400,000,000 livres were issued and secured by 
 a pledge of this property. As they were not readily accepted,, 
 they were given a forced currency. In September 1890, finan- 
 cial difficulties having still increased, a further issue of 800,- 
 000,000 was authorized. The scheme of Law in substance 
 was thus again resorted to. 
 
 While the just principles of the revolution commended 
 themselves to the moral sense of the people generally, ancient 
 prejudices and the habits and opinions passed down from gen- 
 eration to generation could not be eradicated in a day or a 
 year. The nobility had been accustomed to despise all useful 
 labor, to scorn all activities but those of war and the court. 
 Their personal following had been accustomed to look solely 
 to them for employment and support. The structure of so- 
 ciety could not be demolished and reorganized at a single 
 stroke. More deep seated still was the reverence for the 
 established church, to which a great majority of the people 
 adhered. Religious habits are strong everywhere and among 
 an unlearned people, such as the masses of the French then 
 were, the influence of the clergy is very powerful. When con- 
 fronted in the Assembly by the brilliant leaders of the revolu- 
 tion, the representatives of the priesthood had yielded to the 
 demands of justice, but when the body of the clergy were 
 
6i2 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 called on to give up the great properties and privileges they 
 had so long enjoyed, selfishness again resumed its sway, and 
 the sacredness of ecclesiastical rights was asserted in oppo- 
 sition to the authority of the Assembly. The Pope too inter- 
 posed his authority against the destruction of ecclesiastical 
 privilege. The great multitude of priests high and low had 
 been accustomed to a certain scale of living at the expense of 
 the people. To adjust themselves to a complete change of 
 system was no easy task, and all the inertia of a great and 
 long dominant religious establishment was opposed to the new 
 order of things. Though many individuals among the priest- 
 hood were most zealous and intelligent reformers, and 
 though a large portion of the representatives of the clergy 
 had joined with the Third Estate in the most radical measures, 
 of the Assembly, the great church organization still stood 
 riveted to the traditions and prejudices of the past and hostile 
 to the attacks on its great abuses of privilege. 
 
 The nobles, though many of them had been carried along 
 by the waves of lofty sentiment that ruled the Assembly, and 
 though among them were earnest and thoroughly determined 
 reformers like La Fayette, were still as a class tied to all that 
 was bad in the structure of society. Deprived of their great 
 privileges, many of them were simply contemptible as men. 
 Without a habit of useful effort or a desire to do good in the 
 world, they found themselves cast down from their positions 
 of superiority and rated at their true value. Intrigue for 
 unmerited advantage had been in large measure their occupa- 
 tion under the monarchy, and intrigue to regain their privi- 
 leges was their natural recourse when the revolution came. 
 
 These powerful forces, the nobles and their dependents and 
 the clergy, were to be overcome within the state before the 
 fruits of the revolution could be made secure. Without the 
 state dangers threatened on every hand. The spirit of the 
 revolution was opposed to the spirit of class and church privi- 
 lege, which prevailed everywhere in Europe. All the ruling 
 forces of all the neighboring states were vitally interested in 
 maintaining the abuses of power which the revolution had 
 overthrown. The claim of the right of the people to rule 
 
FRA.XCE 613 
 
 was destructive, not only of monarchical authority but of all 
 that vast, false and vicious system of lay and ecclesiastical 
 aristocracy, v^hich for so many ages cursed and oppressed the 
 multitude. The leaders of the revolution soon perceived that 
 all these forces were to be reckoned with. Distrust, often 
 well founded, caused the patriots to closely watch the old 
 aristocracy. The Jacobin Club became the most potent organi- 
 zation of the enemies of privilege. Its headquarters were in 
 Paris, where most of the leaders of the Assembly were mem- 
 bers; it established branches in every part of the kingdom, 
 with which it kept up an active correspondence. 
 
 The Assembly reorganized the clerical establishment and 
 required the clergy to take the civic oath. The Pope inter- 
 posed his authority and by his letter suspended from their 
 functions those priests who having already taken the oath did 
 not retract it within forty days. Refractory bishops and 
 priests sought to arouse their flocks to opj)ose the authority 
 of the Assembly. The Assembly had usurped functions long 
 regarded as belonging exclusively to church authority. Louis 
 had his Easter services in 1790 performed by a refractory 
 priest. This was denounced as treason. On the night of June 
 20, 1 79 1, the King and Queen fled from the Tuileries through 
 an unguarded gate, leaving a proclamation protesting against 
 all the acts to which he had assented during his captivity. 
 Great was the commotion at Paris. At Varennes the fugitive 
 King and Queen were arrested on the night of the twenty-first 
 and the next day they were taken back to Paris. General 
 Bouille, who had undertaken to guard the King's flight, found 
 himself unable to do so. The whole country rose against 
 him, and many of the troops sided with the Assembly, which 
 had ordered that the King be brought back. By order of the 
 Assembly the King and Queen remained at the Tuileries under 
 guard. The King expressed himself as satisfied that the people 
 of France supported the Assembly. On July 17 there was a 
 most unfortunate tumult at the Champ de Mars, the scene of 
 the festivities of a year before, during which the national 
 guard fired on the multitude and killed many. On Sept. 3, 
 1791. the Assembly, having completed the revision of its work„ 
 
614 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 bore the constitution to the King for his approval. He sent 
 his acceptance ten days afterward, and on Sept. 14 he went 
 to the Assembly and there swore to be faithful to the nation 
 and to the law. On the thirtieth he attended its closing ses- 
 sion, and the great National Constituent Assembly ended its 
 labors. Of it La Fayette said, 'The Assembly dissolved vol- 
 untarily, without any of its members having won either for- 
 tune or place, or titles, or power; and we confidently affirm 
 that never was an association of men led by a truer devotion 
 to all pertaining to the liberty and consequently to the real 
 honor of a nation." 
 
 The elections for the new Assembly had taken place in 
 September. It opened October i, 1791 with seven hundred 
 and thirty members, including many young men twenty-five 
 to thirty years old. On the seventh the king attended and 
 made a short address, favorable to the principles of the con- 
 stitution. Many of the nobility had fled from France and 
 gathered upon the German frontier, where they constantly 
 plotted and solicited iforeign aid to overthrow the constitution. 
 Decrees were issued recalling them, and complaints were made 
 against the governments which sheltered them. On April 20, 
 1792 the Assembly declared war against the King of Hungary 
 and Bohemia. The approach of foreign enemies and the dread 
 of internal conspiracies kept the nation and the capital in a 
 ferment. The undisciplined army at first met with reverses, 
 which ardent revolutionists were disposed to charge to treason. 
 The radicals clamored for the deposition of the King. On 
 Aug. 10, 1792, the mob mvaded the Tuileries, from which the 
 King and Queen took refuge in the Assembly. The Swiss 
 guard, having fired into the throng, were massacred. The 
 Assembly overawed by the mob passed a decree, "That the 
 French people is invited to form a National Convention. The 
 chief of the executive power is suspended from its functions 
 until the National Convention has spoken. Every public func- 
 tionary and every soldier, who in these days of alarm shall 
 abandon his post, is declared a traitor to the country." The 
 right of suffrage was extended to all citizens over twenty-five 
 living from the proceeds of their labor. On the next day the 
 
FRANCE 615 
 
 primary elections were fixed for August 26 and the meeting 
 of the convention for September 20. 
 
 The power that had directed the attack on the Tuileries 
 and that now rose into unenviable prominence was the rep- 
 resentative of the sections of Paris. At a new election their 
 number was raised to 288, who assumed the general powers 
 of the Paris Commune. Never was there such a lamentable 
 exhibition of the evil effects of mutual distrust and threats of 
 vengeance as at this time. Ardent republicans clamored for 
 the execution of the political prisoners. Royalists in bravado 
 threatened death to the revolutionists when the power of the 
 king should be restored. The air was filled with talk of blood 
 and the passions of the most brutal became thoroughly 
 aroused, while even the more humane lived in an atmosphere 
 filled with the contagion of violence and malice. The Paris 
 Commune appointed a Committee of Surveillance, composed 
 of violent, bad men, including Marat the Madman. On Sep- 
 tember 2 twenty priests, who refused to take the oath, were, 
 while being transferred to the Abbaye prison, nearly all massa- 
 cred by their guards. Then ifollowed the slaughter of other 
 prisoners under the direction of this Committee, backed by a 
 bloodthirsty mob. No public authority interfered. All seemed 
 paralyzed. The general public conscience, which had been 
 warped by the intemperate language of extremists, did not 
 awaken to the enormity of the crimes which were being com- 
 mitted till it was too late. The slaughter went on through 
 the second and third and did not cease till the sixth, during 
 which time more than 1,300 victims suffered death. Only 
 about one-third of these were political offenders. The rest 
 were prisoners charged with crime. 
 
 By the seventeenth the Assembly began to' reassert its 
 authority. It ordered new elections for members of the Con- 
 vention in Paris, where Marat and other leaders of the massa-. 
 ere had been chosen through intimidation of the better 
 elements, prohibited all night searches, authorized all persons 
 to resist violation of their domicils by force, and required the 
 mayor's signature to all orders of arrest. It further decreed 
 that in any town where the legislative body was in session, 
 
6i6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 whoever sounded the tocsin or fired the alarm gun without 
 order should be put to death. On September 21, the As- 
 sembly passed out of existence and the National Convention 
 took its place. 
 
 The first important act of the Convention, passed by ac- 
 clamation on that day was, "The National Convention decrees 
 the abolition of royalty in France." It was further decreed 
 that all public enactments should date from September 22 as 
 the first day of the year i of the Republic. On the borders 
 the armies of France were gaining victories, not so much by 
 force of numbers as of ideas. The liberty held out to people 
 everywhere was gladly accepted in Belgium, Savoy, Nice and 
 along the Rhine, and the spirit animating the army gave it a 
 new force to which the soldiers 0;f kings were unaccustomed. 
 On December 15 the Convention decreed that in territory oc- 
 cupied by the armies of France the generals should proclaim 
 the abolition of existing imposts, titles, feudal claims, chattel 
 or personal servitude, and exclusive rights of the chase, and 
 all privileges, and ''proclaim the sovereignty of the people 
 and the abolition of all existing authorities; they shall con- 
 voke the people into primary assemblies to organize a provis- 
 ional administration." 
 
 The trial of the King on the charge of treason by the Con- 
 vention had been in progress, and on January 15 and 16 a 
 vote was taken on three questions. On that of guilt 683 out 
 of the 721 members voted in the affirmative. On the question 
 of submitting the decision to ratification by the people there 
 were 424 votes against to 283 for. On the penalty 387 voted 
 for death against 334. On the twenty-first he was executed. 
 Following a levy ;for 300,000 men to meet the enemies of 
 France, there was a bloody revolt on the lower Loire in La 
 Vendee. Dumouriez, who commanded the army in Belgium, 
 turned traitor and sought to deliver the army to the enemy. 
 England, in which there had been some sympathy with the 
 revolution, was shocked by the execution of the king, and its 
 interests were attacked by the course pursued in the Lowlands. 
 It began preparations for war. Distrust grew among the 
 republican factions. On March 9 the Convention established 
 
FRANCE 617 
 
 the revolutionary tribunal to pass sentence on conspirators and 
 counter revolutionists. On April 6 a committee of safety 
 composed of nine members, to deliberate in secret, was estab- 
 lished, to take the place of a prior committee of twenty. This, 
 the Committee of Public Welfare, became the executive head 
 of the nation, with Danton and Cambon as its leading mem- 
 bers. It was to be changed every month. On May 18 a com- 
 mittee of twelve was appointed by the Convention to inquire 
 into the conduct of the Commune. This met with violent op- 
 position from the radicals of the city, and the commission was 
 soon abolished. The radicals were not appeased and on June 
 2 the Parisian mob, under the lead of Marat, invaded the con- 
 vention and by intimidation forced it to vote the arrest of 
 thirty-one of its most patriotic members, who opposed the 
 violent measures of the Eveche and the Jacobins. Nothing 
 can better show the prevalence of a genuine spirit of progress 
 than the fact that, amid all the turmoil and violence with 
 which they were surrounded, the Convention on the third and 
 fourth of June appointed special committees to prepare the 
 civil code, to offer rewards to authors of good elementary 
 school books, and to regulate the division of the public prop- 
 erty. On June 23 a new constitution was adopted, which con- 
 tained among others a provision, that laws should be submitted 
 to a vote of the people in case within forty days after passage 
 by the Assembly one-tenth of the primary Assembly in half 
 the departments plus one objected to the law, otherwise the 
 law would stand. This constitution never became operative. 
 Counter revolutions within the state at Lyons, in La Vendee 
 and at other places and war with foreign powers called for 
 the utmost vigor. On August 23 the Convention decreed a 
 levy for active service of all unmarried citizens and childless 
 widowers from eighteen to twenty-five years of age, and 
 called on all citizens en masse to aid in their organization and 
 equipment. On August 15 Cambon presented a plan, which 
 the Convention adopted, for the consolidation and recording 
 in 'The Great Book" the items of the public debt, to bear 
 live per cent interest. Under the monarchy all had been 
 confusion. This became the foundation of an orderly sys- 
 
6i8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 tern of public finance. On June 26 Lakanal presented a scheme 
 for the primary education of both sexes, and on October 26 
 a decree ior the estabhshment of schools on this plan was 
 passed, but war internal and external and lack of means ren- 
 dered it impracticable to carry the decree into effect. On 
 August I the Convention adopted the metric system of mea- 
 surements and weights. The Convention also in this time of 
 strife within and without proceeded with the great work 
 started by the Constituent Assembly of collecting into a single 
 code the civil law of France. A committee of five was ap- 
 pointed and allowed three months to make its report. It 
 brought in its draft at the end of the first month, and discus- 
 sion on it went on at sixty sessions. Here the substance of 
 that great work, which bears the name of Napoleon, was 
 given form. Its materials were taken from the ancient Ro- 
 man civil law, and from the products oif the labors of the 
 Constituent Assembly and moulded to meet the views of the 
 Convention. Influenced by the counter revolution at Lyons, 
 Marseilles and elsewhere, and greatly exasperated by the 
 treason at Toulon, by which it was surrendered with all its 
 naval and military stores to the English, Paris was again in 
 a violent ferment. A vote carried for the division of the 
 revolutionary tribunal into four sections, in order to expedite 
 its work, and the terrible motto "Let the reign of Terror be 
 the order of the day," was seconded by a decree for an armed 
 force to restrain counter revolutionists and protect supplies. 
 On September 17 a law for the arrest of suspected persons 
 was passed, which left the utmost latitude to the revolutionary 
 committee entrusted with its execution. The only condition 
 imposed was, that the names of persons arrested should be 
 sent to the Committee of Public Safety. The killing of Marat 
 by Charlotte Corday tended to inflame the radicals. On 
 October 14 Marie Antoinette was condemned and executed. 
 Then came the trial of the Girondist members of the Con- 
 vention, whose arrest had been ordered on the third. Twenty- 
 one of them, really innocent of any crime, but courageous 
 men, who opposed the wild excesses of the rabble, were con- 
 demned and executed. This however was not the light in 
 
FRAXXE 619 
 
 which the matter was then viewed. The Girondists' uprisings 
 throughout France were charged against them, and they were 
 sacrificed. There was Httle attention to forms of procedure 
 or evidence of guilt by the revolutionary tribunals, which now 
 extended their work over France. Vigorous military oper- 
 ations were carried on against counter revolutionists, and 
 before the end of 1793 La Vendee, Lyons and Marseilles were 
 overpowered and Toulon was recovered from the English. 
 The bloody tribunal followed, wreaking vengeance on those 
 singled out for punishment. Trials were summary and exe- 
 cution quickly followed condemnation. Madame Roland, a 
 most brilliant and pure minded leader of the revolution, with 
 many others of the best people of France, fell a victim to the 
 fury of this bloody tribunal. Yet, while all this terrible work 
 was going on within, France was triumphing over her enemies 
 without, and along the eastern border the enemies were driven 
 back. Though the reign of terror went on, after the end of 
 the year 1793 the baneful power of the Paris Commune was 
 checked by requiring the committees of the sections to report 
 directly to the Committee of General Safety. The Committee 
 of Public Welfare was placed above the ministers and vested 
 with the general direction oi the government. This divided 
 into three groups of three each, exercising distinct functions, 
 and being composed of men of great energy gave to the ad-^^ 
 ministration needed vigor, though it failed to protect the in- 
 nocent. The year 1793 also brought to view the man who 
 was to deluge Europe with blood and be the central figure in 
 its history for many years to come, Napoleon. On June 10, 
 1794, in order to expedite the work of executing prisoners, 
 on motion of Robespierre it was provided that witnesses 
 against the accused should not be required, if other means of 
 proof existed. The pace of condemnation was greatly acceler- 
 ated. In a little over a year prior to that time 1256 persons 
 had been condemned. In six weeks thereafter 1361 suffered. 
 Nowhere else has bloody retribution overtaken those guilty of 
 bloody deeds with such promptness and certainty as during 
 the Reign of Terror. On July 28, 1794, Robespierre, Saint 
 Just and Couthon, who three days before had felt so secure in 
 
620 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the control of affairs as to call the other members of the com- 
 mittee to account, were condemned and executed with nine- 
 teen others, most of whom had taken part in their bloody 
 work. The next day the seventy members of the general 
 council of the Commune of Paris, many of whom were guilty 
 of no offense, were guillotined en masse. The commune had 
 clamored for blood, and its leaders and the Paris mob had 
 often menaced the convention and its predecessors, the Con- 
 stituent Assembly and the Legislative Assembly! Following 
 the custom of the times there was in this instance no discrim- 
 ination between innocent and guilty. After the suppression of 
 the revolt in La Vendee there had been great slaughter by 
 order of the revolutionary tribunal. Courier and others, who 
 had directed it, were brought to trial and he and others exe- 
 cuted. Some were acquitted. 
 
 On Dec. 28, 1794, the Convention changed the mode of pro- 
 cedure before the revolutionary tribunal so as to protect the 
 rights of the accused and promote justice. The Jacobin club, 
 which had done so much to promote the revolution and also 
 the reign of terror, had been closed by order of the Conven- 
 tion a few days before. The tremendous energy of the revo- 
 lution was not manifested merely in bloody strife, but in an 
 intellectual and physical activity never before exhibited. De- 
 prived of its supplies of steel and saltpetre from foreign ports 
 by war, new processes were invented, steel was made and the 
 cellars of Paris were made to yield saltpetre for powder. A 
 system of signals was devised by which communication was 
 had almost instantly from one part of France to another. A 
 central school of Public Works was established, which after, 
 wards became known as the Polytechnic School, and a Normal 
 School to teach teachers, together with other institutes for 
 special education. On Dec. 26, 1794, a commission of twenty- 
 one was appointed to examine into the conduct of ex-members 
 of the Committees of Public Works and General Safety. On 
 March 2, 1795, this committee reported an indictment against 
 Billaud, Callot, Barere and Vadier, who constituted the ultra 
 revolutionary faction of the committee. Their arrest was 
 ordered by the Convention, and soon thereafter the excluded 
 
FRANXE 621 
 
 Girondists were recalled to seats in the Convention. Seventy- 
 three representatives, held on suspicion, were restored to office, 
 and on March 8, twenty-two Girondists, who had been out- 
 lawed, were recalled. But the days of blood and arbitrary 
 punishments were not over. Distrust still lurked everywhere. 
 Billaud, Callot, Barere and Vadier, were ordered by the com- 
 mittee to be transported at once without trial. Fouquier-Tin- 
 ville the prosecutor who had prosecuted to their deaths so 
 many illustrious men and women, Hermann the president of 
 the court, and the judges and jurors who had condemned 
 them, were themselves brought to trial, but not in that sum- 
 mary manner to which they had resorted. Forty days were 
 consumed in the trial. Fouquirer-Tinville, Hermann and 
 fourteen others were condemned to death and guillotined on 
 May 7, 1795. In the southeast, at Lyons, Marseilles, Toulon 
 and elsewhere the reaction took a more violent form, and 
 there was much slaughtering of those who were charged with 
 participation in the reign of terror. After this there were 
 bread riots, due mainly to the scarcity of provisions, and some 
 summary executions, but the general sentiment was opposed 
 to further bloodshed. A decree was passed abolishing the 
 death penalty except as to the emigrants and for forgers of 
 assignats, but civil commotion was not yet at an end. On 
 May 16 a treaty of alliance was entered into with the States 
 of Holland, and Belgium was annexed to France. On April 5 
 peace was made with Prussia and on July 22, with Spain. 
 Liberal principles had fought the battles of France as well as 
 her armies and, despite internal troubles, France had come 
 out of the struggle with the allied monarchs greatly increased 
 in territory and power. England and Austria alone remained 
 in active hostility, and but for the treason of Pichegru the 
 Austrian army might have been crushed. 
 
 On August 22 a new constitution was adopted by the Con- 
 vention, subject to the peoples' approval. Frenchmen above 
 the age of twenty-one, who paid a direct tax, or who had 
 fought for the Republic through one campaign or would give 
 three days' labor to the government, were made citizens. It 
 contained a declaration not only of the rights but the moral 
 
622 EVOLUTION OF GOVERNMENTS AND L.\WS 
 
 duties of man. Primary meetings were to choose one elector 
 for every two hundred citizens. Electoral assemblies then 
 elected the legislative body, tribunals and officers of the de- 
 partments. The Legislature was divided into the Council of 
 five hundred, who initiated all laws, and council of two hun- 
 dred and fifty Ancients forty years old and upwards, who 
 might veto proposed laws; one-third to be elected each year, 
 and taken from each department in ratio of population. The 
 executive power was placed in a Directory of five members, 
 chosen by the Councils, one to be elected each year, under 
 whom should be responsible ministers. Freedom of the press, 
 of commerce and industry and the inviolability of the home 
 were declared. All Frenchmen who had abandoned their 
 country were forbidden to return, and their goods confiscated. 
 It was estimated that more than 30,000 royalists had left 
 France. Religious toleration was decreed, and no one was to 
 be compelled to contribute, to religious worship, nor was any 
 payment to be made therefor by the government. On Sept. 
 23, 1875, this constitution was ratified by a majority of 50,000. 
 At the riots of Oct. 5, 1795, largely the work of royalists and 
 reactionists. Napoleon came to the front as a leader of the 
 forces of the Convention and dispersed the mob. On Oct. 
 26, 1795, the Convention, which had for a little more than 
 three years steered the ship of state amid mutiny through 
 stormy seas, passed out of existence, and the new Legisla- 
 ture came into power. 
 
 The new directory chosen by the Legislature was La Reveil- 
 lere-Lepeaux, Carnot, Rewbell, Barras and Letourneur. The 
 issuing of assignats had gone on till they were almost worth- 
 less. A new issue of three billions produced only twenty 
 millions. Resort was had to the payment of taxes in kind, 
 and in this manner wheat was obtained for the relief of Paris. 
 Forty-five billions of assignats were issued, and besides the 
 genuine the country was flooded with counterfeits. The fall- 
 ing values of assignats, given forced currency, and the insta- 
 bility of all values gave great opportunities to the speculators, 
 resulting as usual in corresponding suffering among the poor. 
 A striking illustration of the reduced pace at which state trials 
 
FRANCE 623 
 
 went forward was in that oi Babeuf, who had instigated an 
 uprising and advocated community of property, which began 
 February 20, 1797 lasted three months and resulted in his 
 sentence to death with one other person. Seven others were 
 sentenced to transportation and the rest acquitted. The reign 
 of terror had passed away, in 1796 the civil war in the Vendee 
 came to an end, and Bonaparte led the army in Italy. Much 
 blood had been shed by order of the revolutionary convention, 
 but the numbers who had suffered were altogether insignifi- 
 cant as compared with those who fell in the bloody wars waged 
 by Napoleon. Members of the Convention gave up their lives 
 as sacrifices to the good of France, but for each one of these 
 many thousands fell in battle. The civilized world has never 
 ceased to condemn the excesses of the revolution, but it still 
 applauds the wholly indefensible butcheries of war. Much of 
 the bloody work of the reign oi terror resulted from too in- 
 tense devotion to the cause of liberty. Distrust followed the 
 overthrow of the monarchy, which had ripened and rotted 
 through so many centuries. If moderation of language could 
 have been maintained, much crime would have been avoided. 
 Intemperate demands for the blood of opponents and counter 
 threats caused blood to flow when popular tumults occurred. 
 Never was there a time when intemperate words led to bloody 
 deeds so quickly and frequently. But the heroic work of those 
 who braved death at the guillotine gave an impulse to govern- 
 mental reform which can hardly be measured. The peculiar 
 sadness of these executions is augmented by the nobility of 
 soul displayed by so many of the victims. The Girondists and 
 Madame Roland gained a pure fame, which will grow in lustre 
 as true liberty spreads its light over the world. Even Danton, 
 Robespierre and Saint Just were sincere republicans. The 
 great lesson of the reign of terror is, that in times of great 
 excitement intemperate language is as dangerous as sparks in 
 a powder house, and that those who unjustly take the lives 
 of others may expect that retributive justice will soon return 
 upon their necks the unmerited strokes which have destroyed 
 others. Compared with blood spilled in the many causeless 
 wars waged by the kings to gratify their mere personal pride 
 
624 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 or ambition, all the blood spilled by the revolutionary tribunals 
 was as a drop in a great tub full. But the blood of the revolu- 
 tion was to water a plant of incalculable value to mankind, 
 while that spilled at the command of the kings was not only 
 to no good purpose, but passed a legacy of oppression and 
 hatred down from generation to generation. Europe and 
 America claim to believe and follow the teachings of Christ, 
 yet the savage Mars, the war God of ancient Greece and Rome, 
 still holds sway. Kings and states still send their men forth 
 to do wholesale murder to gratify the pride and ambition of 
 kings and rulers, and when great battles are fought and many 
 thousands meet death, and many more thousands live in the 
 agony of mutilation, the multitude applauds and the fierce 
 leaders become worshipped as heroes. France achieved her 
 true and great glory through her three great assemblies and 
 during the time of her bloody travail. Napoleon led her 
 back into the old train of Mars and watered the fields of 
 Europe with innocent blood. For this rulers of England and 
 Austria especially must share the blame, and of Prussia, Spain 
 and Russia also a part. Napoleon sought, not liberty or the 
 happiness of the people of France, but that false phantom, 
 glory, which leads so many to the grave over a path smoking 
 with pestilential fumes of war and reeking with the corrup- 
 tion and miseries it engenders. Europe has neither accepted 
 the rich fruits of the deliberations of the patriots of that 
 memorable period, nor ceased to worship Mars, Woden and 
 Thor. These are still the gods of the palaces and many of 
 the homes of the most advanced nations of Europe, in fact 
 though not in name. The time of intense activity of the pure 
 republican sentiment ended with the Convention. The new 
 legislative chambers were largely reactionary. With the ex- 
 ception of Carnot, that most able and worthy patriot, the 
 Directory was made up of poor or bad material. Napoleon 
 was already plotting to gain arbitrary power, though pro- 
 fessing the most profound devotion to republican principles. 
 He sent his emissaries to Paris to further his ends. The 
 army was rapidly becoming the ruling force of the state. 
 The clubs, which had wielded such vast influence, had lost 
 
FRANCE 625 
 
 their hold on the people, and the most powerful ones had 
 been closed and dispersed. The treason of Pichegru, which 
 had come to light, was made a pretext by Barras, La Reveil- 
 lere and Rewbell for a coiisp d'etat. On Aug. 18, 1797 the 
 Directory addressed a message to the Five Hundred, calling 
 attention to plots and violations of the constitution. It was 
 referred to a special committee to direct prosecutions against 
 all plotters against the constitution and soldiers holding politi- 
 cal councils. On the night of September 3 the Tuileries 
 was surrounded by 12,000 soldiers with forty cannon. The 
 assembly was prevented from holding a session the next day, 
 and Barthelemi, one of the Directory opposed to the coup, 
 was arrested, while Carnot escaped and fled to Switzerland. 
 Thirty members of the Council of Ancients attempted to hold 
 a session at the house of their president and were arrested 
 and imprisoned in the Temple. Eighty-five of the Five Hun- 
 dred, holding a session near by, were dispersed and many of 
 them arrested. A session of those members of the councils 
 favorable to the three Directors, the Triumvirs, was then held. 
 A resolution in thirty-nine articles was voted, annulling the 
 elections in fifty-one departments as being ialsified by royalist 
 emissaries, thus destroying the opposing majority. The po- 
 litical rights which had been restored to the relations of emi- 
 grants were taken from them. Forty-two members of the 
 Five Hundred and eleven of the Ancients were ordered to be 
 transported w^ith Carnot, Barthelemi and other prominent 
 men, including Pichegru. The law recalling transported 
 priests was repealed and all newspapers were placed under 
 police inspection. The law against clubs was repealed, though 
 they were forbidden to attack the constitution. These reso- 
 lutions were first passed by the Five Hundred and then by the 
 Ancients on September 6. The directory was filled by 
 adding Merlin and Frangois. On October 17 Napoleon 
 concluded a treaty of peace with Austria, contrary to the in- 
 structions of the Directory, but which they ratified. This 
 left England as the only country with which war still con- 
 tinued. The Directory made Napoleon commander-in-chief 
 of the army of England, and he came to Paris, where he 
 
626 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 affected modesty and was accorded great distinction. His 
 next project was the invasion of Egypt. 
 
 When the elections of 1798 were held, the Directory again 
 interpased to maintain their ascendency in the Councils and 
 annulled such of the elections as they deemed most unfavora- 
 ble. Treilhord succeeded Frangois on the Directory. While 
 Napoleon was prosecuting his war in Egypt, public senti- 
 ment in France grew hostile to the Directory, and the elections 
 of 1799 were carried by the reactionists. Sieyes succeeded 
 Rewbell in the Directory. The newly elected one-third of the 
 Councils infused life and independence into them. Liberty 
 of the press and of assemblage and free elections were order- 
 ed. Conscriptions were ordered and a forced loan of one 
 hundred millions from the well-to-do classes. War was re- 
 newed and went on in Italy, Switzerland and the low coun- 
 tries against the forces of Austria, England and Russia, as 
 well as in Egypt, with varying success. Napoleon left his 
 army in Egypt and arrived in Paris Oct. 25, 1799, where he 
 at once commenced to plot to overthrow the Directory and 
 assume dictatorial power, backed by his military followers.- 
 The pretext of a Jacobin plot was invented. A decree of the 
 Council of Ancients removing the session to St. Cloud was 
 obtained, and Bonaparte was commissioned to command the 
 military forces and execute the decree. The Council of Five 
 Hundred met four hours later and were disinclined to go to 
 St. Cloud, but Lucien Bonaparte, the president, ruled that the 
 matter could not be discussed till next day. Three of the 
 Directory resigned. Gohier and Moulin, the remaining di- 
 rectors, who remained steadfast in support of the constitution, 
 were kept confined in the directoral residence in Luxembourg 
 by troops under Moreau, who followed Napoleon. The lead- 
 ers of the Councils met at night with Napoleon and Sieyes, 
 when Nopoleon declared that the constitution must be changed 
 and a temporary dictatorship established. There was also a 
 meeting of representatives opposed to his schemes to devise 
 means of resistance. Nov. 10, 1799 the two councils met at 
 St. Cloud. A letter from the secretary general of the Direc- 
 tory was read announcing the resignation of ifour directors. 
 
FRANCE 627 
 
 though neither Gohier or MouHns had resigned. Napoleon 
 appeared in the Council of the Ancients and made a speech, 
 in which he talked of liberty and equality, while he demanded 
 the dictatorship. He then went to the Five Hundred and en- 
 tered, escorted by some of the legislative guard. Being met by 
 protests at the appearance of swords and bayonets in the 
 Council, he was taken from the hall by General Lefevre and 
 the soldiers. Then Lucien Bonaparte went out and addressed 
 the troops as president of the Council in the interest of his 
 brother, after which Murat led in the genadiers, who drove 
 the representatives from the hall. At nine that night Lucien 
 assembled thirty of the members of the Five Hundred, who 
 assumed to be a quorum and approved the course taken by 
 Napoleon and the troops. Three consuls were nominated, 
 Napoleon, Sieyes and Roger-Ducos. All swore to support the 
 republic. Two commissions to assist the consuls in changing 
 the constitution were chosen, and the exclusion of fifty-seven 
 of the representatives and an adjournment of the Councils 
 for three months was ordered. This order was ratified by the 
 Ancients. The new consuls professed devotion to the republic 
 and to liberty. Napoleon was popularly looked on as a Wash- 
 ington, but at best he was one of the coldest of military des- 
 pots. The adoration of the multitude was mainly based on 
 the ancient worship of the war god, as whose representative 
 Napoleon was acknowledged and glorified. The decree which 
 formed the provisional consulate invested them with full 
 power and charged them to restore order and peace. Two 
 commissions of twenty-five members each took the place of 
 the Councils, and their powers were to continue three Months 
 till the Councils should meet again. Napoleon's great strength 
 lay in his judgment of the capacities of men and in his ability 
 to have them carry out his will. He at once selected as his 
 principal ministers three men of great executive ability. Tal- 
 leyrand for foreign affairs, Berthier for war and Gaudin for 
 finance. Many political prisoners were released, but the sale 
 of the goods of the emigrants was confirmed. On November 
 16 a harsh measure was adopted, by which thirty-seven citi- 
 zens were arbitrarily transported and twenty imprisoned on 
 
628 EVOLUTION OF GOVERNMENTS AND K^WYS 
 
 the Isle de Ri. Some were guilty of bloody crimes, but others 
 only of having opposed Napoleon's usurpation of power. On 
 Dec. 15, 1799, the new constitution, mainly the work of Sieyes, 
 was made public. It placed the executive power in three con- 
 suls, to hold for ten years, and eligible to reelection. Of these 
 the first alone could promulgate laws, appoint ministers, am- 
 bassadors, and officers generally. The second and third con- 
 suls could consult with, but not control the action of, the first. 
 500,000 electors chosen by universal suffrage elected 50,000 
 persons, who in turn chose 5,000 names from which a senate 
 made up of eighty life members chose the consuls, tribunes 
 and legislature. The legislative body was composed of three 
 hundred members. A council of state was charged with draft- 
 ing laws, its members to be named by the first consul. The 
 laws thus formed were to be presented to a tribunate of one 
 hundred members, which after discussion was to pass them on 
 in the hands of three orators, who should discuss them against 
 three councillors of state, nominated by the consuls, in the 
 presence of the legislature, which should then adopt or reject 
 the proposed laws by secret ballot without debate. Vacancies 
 in the senate were filled by the senate from a list of three 
 candidates for each vacancy furnished one each by the legis- 
 lature, the tribunate and first consul. The senate had power 
 to veto any law or governmental act it deemed unconstitu- 
 tional. Municipal officers were to be taken from the first list 
 of 500,000 electors, departmental from the second of 50,000 
 and national from the third. There was no declaration of 
 the rights of man and no guaranty of liberty of the press. 
 Personal liberty only was assured. The new constitution was 
 adopted by a large, almost unanimous, vote. Napoleon, Cam- 
 baceres and Lebrun were chosen consuls. The legislative ses- 
 sion of the new government was opened Jan. 3, 1800. A law 
 w^as passed abolishing the cantonal municipalities and substi- 
 tuting larger units called arrondissements. Officers were ap- 
 pointed by the government instead of chosen by the people. 
 Over the departments prefects were appointed and subprefects 
 over the arrondissements, and the commune had a mayor 
 named by the prefect. Corresponding changes were made in 
 
FRANCE 629 
 
 the judicial system, and jurors were named by the prefects. 
 All judicial officers except justices of the peace were appoint- 
 ed. Under this system France was again ruled by one head. 
 On Feb. 9, 1801, peace was made with Austria. July 16, 1801 
 a concordat with the Pope reestablished the Catholic as the 
 religion of state in France, and on March 25, 1802, a treaty of 
 peace was concluded with England. The emigrants, of whom 
 there were said to have been 145,000, were allowed to return 
 and restored to such of their property as had not been sold. 
 The educational scheme of the Convention was replaced by 
 another, which failed to give general primary education, but 
 did provide military schools. By vote of the people Napo- 
 leon's term of office was extended for the term of his life. 
 La Fayette, who after long confinement in Austrian prisons 
 had finally returned to France, voted no, but very few others 
 had the courage to do so. There was a brief period of peace 
 and prosperity, which unfortunately soon came to an end 
 through the fault of bad rulers in France and England. In 
 1803 that long and fearful war commenced, which was to 
 cause such frightful sufferings and loss of life. The year 1804 
 witnessed the completion of the Code, which bears the name of 
 Napoleon, and for which he claimed the credit, but it was of 
 course mainly the work of lawyers, and most of the material 
 for it had been prepared by the Convention. (A summary of 
 the provisions of this Code with its modifications contained in 
 the Civil Code of France will be found in the Appendix.) 
 This great work became a model followed by neighboring 
 states in the codification of their laws, and presents system- 
 atically arranged and concisely stated the civil law of France. 
 On May 18, 1804, Napoleon, having obtained the sanction of 
 the Senate, was proclaimed Emperor with succession in his 
 heirs, a civil list of 25,000,000 and the use of the royal palaces 
 and estates. With the advent of Napoleon to power the in- 
 ternal struggles of parties, clubs and factions soon came to an 
 end. He introduced order and system and carried on useful 
 public works. In the collection of the revenue there was thor- 
 oughness and in its expenditure economy. Restored order and 
 prosperity were placed to his credit and gladly accepted. But 
 
630 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 this gain was at the expense of a mihtary despotism, in which 
 the blood and treasure, the peace and happiness of a great na- 
 tion weighed as nothing against the ambition and the criminal 
 folly of a single heartless despot. Thenceforth the young men 
 of France were called from their homes to be sacrificed to the 
 fierce war god, whose high priest was Napoleon. Despotism 
 in France and despotism in England, Austria, Prussia, Spain 
 and Ru'ssia must be charged with the lives of the millions who 
 were slain in the long struggle, which deluged Europe with 
 blood till Napoleon's fall at Waterloo. 
 
 With these long and fearful wars and the bloody battles 
 which gave Napoleon such renown as a military commander 
 we have nothing to do, save to call attention to the frightful 
 suffering they caused and the needlessness of them all. Never 
 was there a more wanton crime committed against a people 
 who had confided their destines to a ruler than that of Na- 
 poleon in leading a French army into Russia in 1812 to perish 
 v^rithout a cause. The hundreds of thousands of lives, sacri- 
 ficed in battle or to the rigors of a severe northern winter, were 
 offerings to the war god and chargeable to Napoleon. From 
 this time on disasters multiplied, and by the winter of 18 14 
 France was literally drained of young men capable of mili- 
 tary service, and the vast accumulation of arms and military 
 stores, which had been provided with so much care, was in the 
 hands of the enemy in Italy and Germany. Never in all the 
 history of France was there a stronger illustration of the 
 folly of entrusting the power to make war to a single man. 
 Never did a despot live who cared less for human life or 
 human happiness than Napoleon. His mad desire for military 
 glory and conquest dominated every act and doomed to an 
 untimely death most of a generation of brave men. So long 
 as the young are taught to admire and emulate the conduct of 
 such human monsters, and to look on war as the avenue 
 through which fame and glory must be sought, so long will 
 humanity suffer the horrors and miseries of needless wars. 
 When murdering by wholesale shall be viewed in its true light, 
 as private murder now is, and when the duels of nations shall 
 be weighed as private duels are, the world may breathe a 
 
FRANCE 631 
 
 purer air and the worship of Mars give way to the spirit of 
 genuine Christianity. 
 
 Exhausted France could oppose no effectual resistance to 
 the allied powers, who, profiting by the lesson so often taught 
 by Napoleon that time is of prime importance in military 
 movements, pushed steadily forward without allowing time 
 to Napoleon to concentrate the scattered remnants of his 
 forces or to organize and equip the few new recruits France 
 yet could furnish. On March 31, 1814 the allies entered 
 Paris. They demanded the overthrow of Napoleon. On 
 April 2nd the remnant of the Senate decreed the deposition o;f 
 Napoleon and his family ; on the next day the legislative body 
 confirmed the decree, and on the 6th Napoleon abdicated. The 
 allies allowed him to retain the title of Emperor with the 
 island of Elba as his empire, and his wife Marie Louise of 
 Austria was given the duchy of Parma. Ample pensions were 
 allowed to him and the members of his family. A new con- 
 stitution was formed, afterward modified, and Louis XVIII 
 was made king. The executive power and the initiative of all 
 laws was conferred on the king. The peerage was restored, 
 a house of lords taking the place of the Senate, with unlimited 
 power of appointment in the king. The legislative power was 
 confided to the King, Senate and Chamber of Deputies. The 
 Constitution sanctioned individual liberty, freedom of wor- 
 ship and of the press, confirmed the sale of national property, 
 the public debt, and accorded amnesty for acts committed dur- 
 ing the revolution. The senate was to be composed of not 
 less than one hundred and fifty nor more than two hundred 
 members, chosen by the King, but one hundred of the senators 
 then in office were to be continued. The Catholic was retained 
 as the religion of state. The right of suffrage was greatly 
 restricted. Electors were required to be thirty years old and 
 pay an indirect tax of three hundred francs. Deputies were 
 to be elected for five years and one-fifth renewed each year. 
 The right to make war and peace was vested in the king, with 
 that of making all arrangements necessary for the execution 
 of the laws and the safety of the state. A responsible minis- 
 try was established. Conscriptions were to be regulated by 
 
6.32 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 law. The Constitution was dated from the nineteenth year of 
 the reign of Louis XVIIl, as if the repubhc and empire had 
 never existed, and was called the Constitutional Charter, as if 
 granted by grace of the king. The Charter was proclaimed 
 June 4, and eighty-three senators and forty dukes from the 
 nobility of the old regime were made members of the new 
 house of peers. The rule of the Bourbons, which again placed 
 in authority those who had so long been the enemies of 
 France, though at first accepted with hope, because of the in- 
 tense longing of the people for peace and security, soon pro- 
 duced irritation everywhere. The King and his followers were 
 wanting both in moral purposes and in business capacity. The 
 treaty of Paris, which diminished the territory of France, was 
 a source of national humiliation. Discontent grew, and Na- 
 poleon, learning the situation, set sail on Feb. 26, 181 5, with 
 about 1,100 soldiers and landed near Cannes on March i. 
 He was received everywhere with enthusiasm, the soldiers 
 sent to oppose him deserting the Bourbons and joining his 
 little army. On March 19 he reached Fontainbleau, and the 
 Bourbons fled. On the 20th he entered Paris and took pos- 
 session of the Tuileries. Again the Constitution was changed. 
 Napoleon seeking the aid of the republican sentiment. It was 
 in main the Charter of Louis XVIII, the principal change be- 
 ing in the lower house, which was called House of Represen- 
 tatives, and in the mode of election. Primary meetings were 
 to nominate for universal suffrage 100,000 electors for life, 
 iforming two classes, one of the departments awd the other 
 of the districts, each of which were to elect representatives at 
 least' thirty years of age. The peerage was declared heredi- 
 tary. This constitution, called the supplementary act, was 
 ratified by the people. The two chambers met on June 3 and 
 Napoleon set out on June 20 to be defeated at Waterloo. 
 The representatives of the people again had to face the situa- 
 tion of submission to foreign powers. In the Chamber of 
 Representatives Lucien Bonaparte strove to maintain Napol- 
 eon in power. To his appeal La Fayette answered : "Prince, 
 you slander the nation. It is not for forsaking Napoleon that 
 history will blame France, but ifor following him so long. 
 
FRANCE 633 
 
 She followed him in the Egyptian sands and the Russian des- 
 erts, on fifty fields of battle, in reverses as in his triumphs. 
 Fidelity too long continued has cost France three million 
 men!" The net result of all this enormous sacrifice was, that 
 exhausted France lay at the mercy of its many foes, some or 
 all of whom might have been friends if Napoleon had striven 
 for peace with half the zeal he prosecuted war. Napoleon 
 again abdicated, proclaiming his son emperor. On July 4 the 
 representatives signed the capitulation, turning the destinies 
 of France over to the allies, but on the same day a declaration 
 of rights was presented to the House which was adopted on 
 the next. On July 7 Prussians and EngHsh took possession of 
 Paris and Louis XVIII entered it the next day. The inunda- 
 tion of foreign soldiers, who pillaged and preyed on France, 
 was overwhelming, amounting to as high as 1,240,000 men. 
 The French army was disbanded and disorder, pillaging, mur- 
 der and excesses of all sorts prevailed over the country. On 
 July 15 Napoleon surrendered to the English and went to 
 Plymouth, expecting to be allowed to live in retirement, but 
 he was sent Aug. 8 to St. Helena as a captive. The elections 
 in 181 5 were carried by the royalists, and a law was passed 
 creating special courts for the trial of political offenders. The 
 peerage was reconstructed by the addition of one hundred 
 and ninety-four peers, declared hereditary. Louis reigned 
 as a constitutional monarch in comparative peace. In 1819 
 the electoral laws were revised so as to require the election of 
 all the deputies once in seven years, instead of a portion each 
 year, and increasing the number. The policy of a protective 
 tariff on foreign goods was adopted, and with peace and in- 
 dustry France advanced in prosperity. The many-sided civ- 
 ilization, contributed to by the millions of people, moved 
 forward. Political parties developed, but there were no great 
 out-breaks causing bloodshed. Louis XVIII passed away on 
 Sept. 16, 1824, and Charles X took his place. The rule of 
 Louis XVIII was not that of a Bourbon despot, but of a 
 constitutional monarch, governed in great measure by the 
 principles developed by the revolution. Charles observed the 
 restrictions on his power imposed by the charter in the main 
 
634 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 until 1829, when he named a very obnoxious ministry. On 
 July 25 four ordinances were signed by the king and counter- 
 signed by the ministers, the first suspended the freedom of the 
 press, the second dissolved the Chamber of Deputies, the 
 third reduced the number of deputies and altered the electoral 
 law, and the fourth convened the new electoral college on 
 Sept. 6 and 13. When these arbitrary acts became known 
 Paris was again in a ferment. On July 28 the streets were 
 barricaded, the tocsin was sounded and all Paris rose to resist 
 the king's usurpation of authority. There was fighting in the 
 streets between the troops and the citizens, but many of the 
 soldiers were disposed to side with the people. Though 5300 
 persons were killed or wounded in the fight, there were no 
 exhibitions of such barbarity and blood thirstiness as in the 
 revolution of 1789. The people realized that the soldiers 
 fought ;from a sense of duty, and the soldiers really felt in 
 sympathy with the people. On the 29th two regiments went 
 over and joined them. The king was without efficient support 
 and left the city. La Fayette, that grand character, who had 
 taken part in the stormy scenes of the American Revolution 
 and of 1789, again came to the front in command of the 
 national guard of France. The King abdicated and left 
 France on Aug. 3, 1830. On the same day the Legislature 
 convened, two hundred and forty deputies and sixty peers be- 
 ing present. The Constitution was again changed, the Cath- 
 olic religion ceased to be recognized as the religion of state, 
 censorship of the press was abolished and its inviolability es- 
 tablished, commissions and extraordinary courts for the trial 
 of offenders were prohibited, the tricolored standard was 
 resumed, the age of deputies was fixed at thirty to serve five 
 years, hereditary peerage and all peerages created by Charles 
 X were abolished. The throne was declared vacant and the 
 Duke of Orleans was chosen king, on condition of acceptance 
 of the amended Charter. Though there was much republican 
 sentiment, many ardent republicans like La Fayette deemed it 
 wisest to choose a king. Louis Philippe came to the throne 
 as a citizen king. The difference between his case and that 
 of ancient monarchs was expressed by M. Thiers, who took 
 
FRANXE 635 
 
 part in this revolution, in the words, "The king reigns, he does 
 not govern." Louis PhiHppe was n.ot content however to 
 merely reign, he sought also to govern. On June 5, 1832 there 
 was an outbreak in Paris which assumed considerable propor- 
 tions and seemed formidable, but on the next day it was sup- 
 pressed. Many of those implicated were arrested and tried. 
 Some were sentenced and others acquitted, but there were no 
 executions, thus showing a marked advance from the bloody 
 days. Though Louis Philippe was charged with weakness in 
 his foreign policy, he avoided disastrous foreign wars, and 
 France prospered in peace. His reign witnessed the introduc- 
 tion of the railroad and telegraph and marked advance in 
 manufactures and commerce. Though there were many at- 
 tempts to take the King's life, he always exhibited courage 
 when attacked and clemency toward those implicated. Noth- 
 ing more surely proves the advancing moral tone of the people 
 than the improved administration of justice. Trials no longer 
 meant mere formal procedure preliminary to bloody execu- 
 tions, but there was a decided leaning toward clemency, and 
 even those guilty of political offenses were sometimes acquit- 
 ted. The King no longer used the courts as tools for the exe- 
 cution of his arbitrary will. The public were becoming ac- 
 customed to submit to law and reject claims to arbitrary power. 
 On Feb. 24, 1848, as a result of an order prohibiting the 
 holding of a banquet, all Paris rose against Philippe, who in 
 the morning believed himself secure, yet abdicated at noon in 
 favor of his grandson. Barricades were thrown up all over 
 the city. The national guard, when summoned, sided with 
 the people, and the regular troops, though numerous, were 
 not able to contend with the mob. Public sentiment was so 
 strong against the king and his ministers that a revolution 
 was effected with very little bloodshed. A provisional govern- 
 ment was formed by naming a new ministry, the Chambers 
 were dissolved and an election ordered to choose a new Na- 
 tional Assembly. The ministry were confronted with con- 
 ditions urgently demanding relief. Great numbers of laborers 
 were unemployed and in want. They looked to the state to 
 afford them relief. On February 25 a workman rushed into 
 
636 . EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the council chamber with a petition crying for, "the right to 
 labor in an hour." "Such is the will of the people." This was^ 
 not a very disorderly demand, though difficult to comply with 
 on a large scale under such circumstances. The election for 
 members of the National Assembly was finally fixed for April 
 23, and nine hundred representatives were to be chosen by 
 departments and to receive twenty-live francs per day. All 
 titles of nobility were abolished. The political discussions 
 preceding the election, disclosed a great diversity of ideas and 
 schemes for the betterment of social conditions. The relations 
 of labor and capital and the fundamental questions concerning 
 rights of property were much discussed, and socialists and 
 anarchists advanced their theories. The ministry established 
 banks of discount and public warehouses and resorted again 
 to paper money. Great numbers of laborers were employed 
 on public works, the list including by the end of April nearly 
 100,000. On April 2y, 1848, the government proclaimed the 
 abolition of slavery, including the colony of Algiers. The 
 elections passed ofif peaceably with a few exceptions, the new 
 National Assembly convened on May 4 and on the 8th ap- 
 proved the conduct of the provisional government. On June 
 23 rioting commenced in Paris and barricades were erected. 
 No very well defined purpose animated the rioters, but they 
 were led by agitators who. opposed the measures of the As- 
 sembly, and a great number of needy laboring men followed 
 them. Serious conflicts ensued, continuing through the 24th 
 and 25th, when the rioters were finally overcome by the 
 troops. More than 1500 persons were killed and 2500 
 wounded in this conflict, which was wholly wanting in good 
 results, and was followed by the arrest, imprisonment and 
 trial of a great number of persons who took part in it. It 
 is encouraging to note that the days of summary and bloody 
 punishments were over, some were transported and some im- 
 prisoned after trial, but none were executed. On Nov. 4, 
 1848 the Assembly completed its work in the adoption of a 
 new Constitution, which was read to the people in the Place 
 de la Concorde on November 12. It provided for a President 
 to be elected for four years by the people and ineligible to re- 
 
FRANCE 637 
 
 •election till after ;four years more. The Assembly of 750 
 members was to sit in a single body with power to choose a 
 council of state to hold for a term of six years, and to draft 
 all laws. Magistrates were to be named by the executive 
 power, mayors by the town councils, and justices of the peace 
 elected by the people. Among the clauses of the Constitution 
 exhibiting an advanced appreciation of the obligations of the 
 state to its weaker members and to the outer world were the 
 following: "The French Republic respects foreign nationali- 
 ties ... it will never employ its powers against the liberty 
 of any people." 'The republic should by fraternal assistance 
 insure the support of its needy citizens either by procuring 
 them work to the extent o;f its means or by giving the means 
 of existence to those who are unable to work and have no 
 family." The duty of the state to furnish education was 
 recognized. 
 
 The election was fixed for Dec. 10, 1848, and resulted in 
 the choice of Louis Napoleon Bonaparte as President. On 
 December 20 he took the oath of office, professing devotion to 
 the cause of liberty and the principles of the republic. The 
 Constituent Assembly held its last session on May 27, 1849 and 
 the new Legislative Assembly opened on the next day. Louis 
 Napoleon began his career as President by overturning the lit- 
 tle Republic of Rome, which had driven out the Pope, and re- 
 storing him to his temporal possessions, in violation of the 
 Constitution. On March 15, 1850 the Assembly passed an 
 educational law which gave to the Catholic clergy the principal 
 supervision of primary schools. The election law was chang- 
 ed so as to require a three years' residence to qualify a voter. 
 This disfranchised a large portion of the laborers. On Dec. 
 2, 1 85 1, Napoleon, having gathered about himself and placed 
 over the army men on whom he could rely, caused the arrest of 
 sixteen of the most prominent members of the Assembly, 
 without any lawful pretext, and issued a decree and three 
 proclamations. The decree dissolved the Assembly and re- 
 stored universal suffrage. Paris was declared in a state of 
 siege. One proclamation accused the Assembly of plots and 
 appealed to the people to adopt a new form of constitution, 
 
638 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the leading points of which were : First, A President chosen 
 for ten years ; second, Ministers responsible to the President ; 
 third, A council of state to prepare laws and discuss them be- 
 fore the legislative body ; fourth, A legislative body elected by 
 universal suffrage to discuss and pass laws; fifth, A Senate to 
 guard the Constitution and public liberty. To the army a 
 flattering proclamation was issued, demanding passive obedi- 
 ence to orders and assuming full responsibility to the people 
 for all his measures. The third proclamation was by^ the 
 prefect of police warning all that attempts at revolt would be 
 severely repressed. The Assembly was forcibly prevented 
 from again convening. • Though the Constitution gave the 
 supreme court power to call a grand jury to try the president 
 in case of high treason, no action was taken because of ''the 
 material obstacles to the execution of any decree that might 
 be issued." Attempts at resistance to Napoleon's usurpation 
 of power were made at Paris and throughout the provinces, 
 but they were mercilessly crushed. In Paris some barricades 
 were erected, but the people were not able to hold them against 
 the army, and those offering resistance were mercilessly slaugh- 
 tered. As the resistance was overcome great numbers of 
 arrests were made, and while the guillotine was not again set 
 actively at work, there were many arbitrary orders of trans- 
 portation and imprisonment without any observance of legal 
 forms. Hostility to the usurper was an offense punished by 
 his emissaries at discretion. The election held on December 20 
 and 21 resulted in an overwhelming endorsement of the usur- 
 pation. On Jan. 14, 1852, Napoleon promulgated a new Con- 
 stitution. It began with a "recognition, confirmation and 
 guarantee of the principles proclaimed in 1789," but "The gov- 
 ernment of the French Republic is intrusted to Prince Louis 
 Napoleon Bonaparte for the term of ten years," who was made 
 responsible to the French people. The president was given 
 command of the army and navy, power to declare war, make 
 treaties and alliances, fill offices and make rules and regulations 
 for the execution of the laws. Justice should be executed in his 
 name and he alone could issue, sanction and promulgate laws. 
 All public functionaries must swear allegiance to him. "The 
 
FRANCE 639 
 
 wheel within the wheel of the new organization will be a state 
 council of from forty to fifty members, chosen and revocable 
 by the president of the republic, discussing the laws in private 
 session, then presenting them for the approval of the Legis- 
 lature." The Legislature was to consist of 262 members, 
 chosen for five years by universal suffrage, to vote on laws 
 and taxes. The Senate was composed of eighty members, 
 liable to be increased to one hundred and fifty, chosen by 
 the president, except that cardinals, marshals and admirals 
 were senators virtute officii. The president might give sena- 
 tors an income of 30,000 francs. The senate was to oppose 
 the promulgation of laws contrary to the Constitution, to mor- 
 ality, religion, etc. All mayors were chosen by the executive. 
 There was no guaranty of liberty of the press or security of 
 the person against arbitrary arrest. The new constitution 
 created a despotism based on a written constitution and uni- 
 versal suffrage. The new government closed many of the 
 schools and changed the faculty of the university and the 
 course of study. On the other hand its energies were devoted 
 to the development of industrial enterprises and commerce. 
 Railroad companies were organized and roads constructed. 
 Banking institutions were organized and the Bank of France 
 grew in importance. November 20 and 21 the people restored 
 the Empire with Napoleon as hereditary ruler under the title 
 of Napoleon III by a nearly unanimous vote. March 27, 1854, 
 the war with Russia broke out with the somewhat novel com- 
 bination of Turkey, France and England as allies against Rus- 
 sia, while Austria armed but remained neutral. This strange 
 combination prosecuted a war which cost France the lives of 
 95,000 men, besides those who lingered on, suffering from the 
 effects of wounds, exposure and disease, and from which 
 France gained nothing. 
 
 On May 3, 1859, the emperor announced to the Chambers 
 that Austrian troops had invaded Piedmont and proclaimed 
 that Austria must rule to the Alps or Italy be free to the 
 Adriatic. A brief campaign resulted in overwhelming defeats 
 for the Austrians, followed by a peace quickly concluded 
 by Napoleon, by which Piedmont gained Lombardy at the 
 
640 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 expense of the cession of Nice and Savoy to France. This 
 war, although bloody while it lasted, ended July 8. It gave 
 Napoleon prestige, restored to France a part of its natural 
 territory and imparted an impulse to the idea of Italian na- 
 tionality and unity, which soon resulted in the union of the 
 whole peninsula under the Sardinian king and the expulsion 
 of the Austrians. Operations in China and Algeria were also 
 productive of the extension of French power, but the attempt 
 to place Maximilian on the throne of Mexico during the 
 civil war in the United States, cost that unhappy prince his 
 life, along with that of many thousand others, and brought 
 disgrace on the empire. Neither of these wars was long or 
 very exhausting to France. On the other hand the peaceful 
 activities of the country were stimulated under the reign of 
 Napoleon as they had never been before. A liberal trade 
 policy, by which many ancient restrictions were abolished and 
 trade with foreign countries encouraged, together with the 
 development of shipping interests and improved means of 
 internal communication by railroads, canals, and wagon roads, 
 resulted in rapid development of manufactures and domestic 
 and iforeign commerce. Though the rule of Napoleon III was 
 a despotism, it was a despotism based on the popular will and 
 with energies directed toward the material development of 
 France. In adapting such a government to the tastes and 
 prejudices of the French people Napoleon III manifested great 
 tact, and on the whole his system was not altogether unsuited 
 to the conditions then existing. But the inevitable attendants 
 of despotisms are corruption and injustice. Arbitrary power 
 is never effectually held within the even course of justice 
 merely by a sense of right. The unrestrained power to act 
 on impulse, without external restraint, inevitably results in 
 departure from right conduct. There is also a strong tendency 
 for the official instruments, through whom the despot exe- 
 cutes his will, to adopt systems and methods of administration 
 which are essentially and inherently bad in their effects on 
 the general public, but agreeable and profitable to the inter- 
 ested supporter of the throne. Whether a realization of the 
 growth of such conditions influenced him, or other motives, 
 
FRANCE 641 
 
 in i860 he granted to the Legislature pubHcity of debate, free- 
 dom of speech and some measure of control over the expendi- 
 tures of public moneys. Legislation for the betterment of the 
 conditions of laboring men was also attempted. While look- 
 ing to the people through universal suffrage for his support 
 and authority, he really took some interest in the welfare of 
 the great multitude. In 1869 he proposed still more sweeping 
 reforms, by creating a ministry responsible to the Senate as 
 well as to the Emperor, and otherwise materially extending 
 the power of the Legislative Chambers. In accordance with 
 his prior policy his new constitutional measures were submit- 
 ted to the people and approved by an immense majority on 
 May 8, 1870, 7,300,000 voting for to 1,500,000 against. The 
 particulars of the changes thus effected in the framework of 
 the government were rendered unimportant by ifollowing 
 events. The greatly increased power of the Prussian mon- 
 archy, elevated to the leadership of Germany after military 
 successes over Austria, caused intense popular jealousy in 
 France. Napoleon, relying on the reports of his ministers as 
 to the condition of the army and its equipments, rashly and 
 rudely provoked war with Germany, without any real ground 
 for a quarrel. War was formally declared on July 19, 1870, 
 but here the weakness of his despotism became evident to 
 Napoleon and to the world. The effects of corruption and in- 
 efficiency were apparent in all departments of the military 
 service. Instead of a state of readiness for immediate action, 
 it was found that the army was in no condition to move. 
 Arms, wagons, ammunition and equipments of all kinds were 
 so stored and distributed as to be unavailable ifor immediate 
 service. On the other side Germany was ready, and by Sep- 
 tember 2, a month after the opening of the campaign, Napo- 
 leon and his army were prisoners of war as the result of the 
 fatal battle of Sedan. On Sunday September 4 the Legisla- 
 ture met, declared the Imperial Government at an end and 
 proclaimed the Republic. A provisional government with 
 General Trochu as President was formed. Though this gov- 
 ernment struggled desperately to rally the forces of France 
 and resist the invading host, no sufficient amount of energy or 
 
642 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 effort could be exerted to counterbalance the superior prepa- 
 rations of the Germans. On January 28, after enduring the 
 horrors of a siege with its vast population, Paris surrendered 
 to the invaders. On February 26 peace preliminaries were 
 settled, France ceding Alsace, except Belfort, and part of 
 Lorraine, and agreeing to pay 1,000,000,000 francs as war 
 indemnity. During the first week of February elections were 
 held and a new Assembly of 653 members was chosen, which 
 convened at Bordeau on the twelfth and on the seventeenth 
 chose M. Thiers President, who named an able ministry. 
 When Paris surrendered the National Guard were allowed to 
 retain their arms. After the terms of peace had been ac- 
 cepted the old turbulence of the Parisian mob again mani- 
 fested itself, it rose in revolt against the government, and the 
 National Guard joined forces with it. A bloody conflict fol- 
 lowed, but this time France dictated to Paris, not Paris to 
 France. For once the government supported by the provinces 
 was able to force the turbulent city to submit, though not 
 without much bloodshed and many barbarities, all too similar 
 to those of the reign of terror. 
 
 The government drifted without the adoption of a definite 
 constitution. The Assembly, which had moved from Bor- 
 deaux to Versailles was monarchically inclined, but legitimists, 
 Orleanists and imperialists were not able to combine. In May 
 1873, the Thiers government sustained a defeat in the As- 
 sembly, as a result of which Thiers resigned. Marshal 
 McMahon was elected to succeed him, and at the session which 
 began in November 1873 his powers were prolonged for seven 
 years. The matter of settling the constitution dragged on 
 till Feb. 25, 1875, when the proposition was finally carried by 
 a majority of only one vote, that "the President of the Re- 
 public is elected by an absolute majority of votes, by the 
 Senate and Chamber of Deputies united in National Assembly. 
 He is appointed for seven years, and is eligible for reelection," 
 and also that the power of dissolving the Chamber should be 
 granted to the President of the Republic. A Senate was 
 created consisting of three hundred members, not under forty 
 years of age, one third to be chosen every three years, with 
 
FRANCE 643 
 
 powers equal to those of the Chamber of Deputies except in 
 matters of finance. The Senate was made a court for the 
 trial of the President and ministers in case of impeachment. 
 The Chamber was elected by universal suffrage, and had 
 power to propose amendments to the constitution, which must 
 be adopted by both houses. During McMahon's term no re- 
 vision was allowed unless proposed by him. The President 
 was the executive with power to appoint civil and military 
 executive officers, nominate the Council of State, dissolve the 
 Chamber of Deputies at any time with the consent of the 
 Senate, and to be responsible only for treason. The ministers 
 were made responsible individually and collectively to the 
 Chambers. Thus the existing republic was established. The 
 assembly ended its existence on March 7, 1876. The elections 
 which ensued resulted in a large Republican majority. On 
 June 25, 1877, owing to a controversy between the President 
 and Chamber of Deputies over the Ministry, the Chamber was 
 dissolved and an election ordered. The result was an in- 
 creased Republican majority. A ministry still out of harmony 
 with the majority having been named by the President, com- 
 posed of persons not members of the Chamber, a resolution 
 passed that body to "hold no relations with this Ministry," 
 and the Chamber refused to vote the Budget. The President 
 found it necessary to yield. In January 1879 he came in con- 
 flict with the ministry over army appointments, which he al- 
 lowed to continue longer than the legal limit, and the President 
 resigned. Jules Grevy was thereupon elected by the two 
 Chambers assembled in congress as his successor. Since the 
 establishment of the Republic the energies of government have 
 been directed more than ever before toward the development 
 of an orderly system, based on the will of the people. Under 
 the law of 1885 the representation is on the basis of one rep- 
 resentative for each department and an additional one for 
 every 70,000 or fraction thereof of population, and the depu- 
 ties are chosen by universal suffrage. The Senate consists of 
 three hundred members, one-fourth of whom were at first 
 chosen for life by the Assembly, and each vacancy among 
 these to be filled by the Senate. The remainder are chosen 
 
644 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 for nine years by special bodies in each department and in the 
 colonies, a third of the number being renewed every three 
 years. The President receives a salary of 600,000 francs per 
 year and an allov^ance for expenses of 162,400 francs. Sena- 
 tors and deputies receive 9,000 francs per year. The allow- 
 ance is not large compared with those to past kings and 
 emperors, who were granted 12,000,000 to Louis Philippe, 
 32,000,000 to Louis XVIII and his family, and 25,000,000. 
 besides many special revenues to Napoleon III. At the head 
 of the executive department is the president, with a cabinet 
 of nine ministers, namely of justice and keeper of the seals,. 
 ■foreign affairs, interior, finance, war, marine and colonies, — 
 instruction, ecclesiastical affairs and fine arts, — agriculture 
 and commerce, and public works. These ministers are ap- 
 pointed by the president, but responsible for their acts to the 
 chambers. Aside from the responsible executive and legis- 
 lative departments of the government there is a council of 
 state, whose business it is to give advice on projects of law 
 proposed by the executive or the chambers and on adminis- 
 trative regulations and by-laws. They also exercise jurisdic- 
 tion over administrative officers. All disputes arising in 
 matters of administration and all complaints against admin- 
 istrative officers are cognizable by the Council, whose decision 
 is final. The composition of the Council is a president and 
 vice-president, twenty-two councillors in ordinary service and 
 fifteen extraordinary, twenty-four masters cf requests, twenty 
 auditors of the first class and ten of the second, a general 
 secretary and a secretary du contentieux. The auditors are 
 appointed after competitive examination, the ordinary coun- 
 cillors by the chamber of deputies and the others by the presi- 
 dent. For administrative purposes France is now divided 
 into eighty-seven departments, subdivided into three hundred 
 sixty-two arrondissements, 2,865 cantons and about 30,000 
 communes. The chief executive officer of each department is 
 a prefect appointed by the president, and of each arrondisse- 
 ment a sub-prefect. A prefect is charged with the mainte- 
 nance of order, and for that purpose is at the head of the 
 police and may summon the military force; he superintends. 
 
FRANCE 645 
 
 the collection of taxes, issues local decrees, appoints and dis- 
 misses his agents and is charged with the duty of executing 
 the orders of the government. There is also in each depart- 
 ment a general council elected by universal suffrage, and a 
 council of prefecture nominated by the executive. The busi- 
 ness of the councils is to assess taxes, manage local property, 
 roads, railways, canals, charitable institutions and other mat- 
 ters of local interest, decide legal questions and advise the 
 prefect when he so requests. They are also designed to place 
 a check on any attempt at usurpation of power, and in case of 
 a coup d'etat they must immediately assemble and choose mem- 
 bers of a new assembly. The duties of the sub-prefect corre- 
 spond in the arrondissement with those of the prefect in the 
 department, and he is assisted by a council of the arrondisse- 
 ment, to which each canton elects a member. 
 
 The commune is the administrative unit, with a mayor at 
 its head assisted by deputy mayors, varying in number ac- 
 cording to population. In the large towns the mayors are 
 named by the government from the members oi the municipal 
 council elected by the people. This council has powers simi- 
 lar to those of the departments. The mayors are registrars 
 of births, marriages and deaths. In every canton there is a 
 commissary of police, who acts under direction of the mayor. 
 In towns of less than 6,000 inhabitants he is chosen by the 
 people, and in larger ones appointed by the president. 
 
 At the foot of the judicial system is a judge de paix, judge 
 of the peace, in each canton with jurisdiction in civil causes 
 involving 200 francs or less and in criminal causes where the 
 fine cannot exceed fifteen francs. An appeal lies from judg- 
 ments for over 100 francs. In every arrondissement is a 
 primary court of general original jurisdiction in civil cases. 
 An appeal lies to the court of appeals from a judgment for 
 more than 1,500 francs. There are twenty-six courts of 
 appeals, which are located at certain chief towns. There are 
 also tribunals of commerce, whose judges are chosen from 
 the merchants by themselves, in the principal cities. Their 
 decisions in cases involving over 1,500 francs are also subject 
 to appeal. For offenses next above the jurisdiction of judges 
 
646 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of the peace there is a special section of the tribunals of first 
 instance, called the tribunal correctionnel, to which appeals 
 lie from the judge of the peace, and its judgments are subject 
 to revision by the court of appeals. For the trial of felonies 
 there is the cour d' assises, consisting of three judges and 
 twelve jurors. These courts sit in each chief town in the 
 department once in three months. In criminal cases a private 
 preliminary inquiry is conducted by a judge d' instruction, who 
 either ends the proceeding by an order of non-lieu or passes 
 the case over to the court, to be thereafter conducted by the 
 public prosecutor. At the head of the entire judicial system 
 stands the Court of Cassation, composed of three divisions 
 chamhre des requetes, chambre civile and chambre criminelle. 
 It reviews the proceedings of the other courts, which are ap- 
 pealed to it, and corrects errors of law, but does not review the 
 findings of fact. When a cause is reversed, it sends it for a 
 new trial to such court as it thinks fit. 
 
 There are also military tribunals, maritime tribunals and 
 councils of discipline for lawyers and other professions. An 
 important institution is the cour des comptes, consisting of 
 three chambers with a president in chief and a president of 
 each chamber, a general procurator, a chief greffier, 102 coun- 
 cillors, twenty auditors, and eighty-one clerks, which super- 
 vises the accounts of all government ofHcials. One of the 
 chief functions of the juge de paix is to bring parties to an 
 agreement before suit, and no suit can be brought in the 
 courts of first instance till he has made an unsuccessful effort 
 to bring the parties to an agreement. 
 
 The history of France suggests the question why despot- 
 isms have lasted so long and republican forms of government 
 proven so short-lived. Nowhere else have higher ideals of 
 the relations of man found expression than in France during 
 the revolution and prior to the advent of Napoleon, yet the 
 republic vanished and the empire followed, supported by the 
 people before whom such high ideals had but just been pro- 
 claimed. Little of good existed in the system of Louis XIV, 
 yet his despotism endured to be continued under his succes- 
 sors for the greater part of a century. His was a system of 
 
FRANCE 647 
 
 extorting from the great multitude the major part of their 
 earnings to waste it on idle courtiers or in wars for the glory 
 of the king. Not only were the multitude deprived of the 
 products of their labors through theories of land tenure and 
 taxation, but they were deprived of all access to the great 
 store of knowledge which is at all times the treasure of 
 greatest value. It is difficult to point out any benefit which 
 the Bourbon dynasty conferred on the common people, save 
 a little; restraint from harming one another. It is difficult to 
 point out moral qualities in the king or his courtiers which 
 commended them to the support of the people. What then 
 influenced the multitude to submit to their authority? They 
 and their ancestors had been educated through many centuries 
 to do so. The doctrine of the divine right of kings to rule and 
 that their acts as rulers, however lacking in moral quality, 
 were right and not open to criticism, had been taught, not 
 only by state officials of all classes, but by the clergy, who 
 came in close contact with the multitude. A great system had 
 been built, to which all classes had become accustomed. In 
 matters of religion the multitude looked to the clergy for 
 guidance. In matters of state the king was all powerful. 
 The great toiling multitude of peasants were too ignorant 
 and too poor to either appreciate the injustice they endured 
 or make any concerted effort to relieve themselves of it. The 
 mechanics and laborers in the cities were a little better in- 
 formed, but still without organization or well defined common 
 purposes. The so-called higher classes, those who did not 
 work but profited :from the prevailing conditions, had most 
 knowledge of the system under which they lived and least in- 
 clination to change it. The great landholder appreciated the 
 advantages he derived from the system of land tenure, which 
 made his tenants his servants. The courtier rejoiced in the 
 system which squeezed revenue from the impoverished multi- 
 tude, for the greater the sum collected the more there was 
 for the king to lavish on unworthy favorites. The courtiers 
 looked to the king for their incomes and knew that favors 
 were only to be gained by subserviency to his will and pleas- 
 ing his vanity. Thus at the court of France the art of pleas- 
 
648 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ing came to be studied as of first importance with little less 
 than oriental servility toward the monarch. The clergy as a 
 class found it to their interest to uphold the prevailing sys- 
 tem, because it protected them in their vast privileges. 
 Whence then came the impulse of the revolution? From the 
 scholars and thinkers, from those who sought truth rather 
 than personal advancement, from men in whatever station in 
 life who had consciences keen enough to be moved by the 
 abuses of the times and sufficient discernment to comprehend 
 them. 
 
 The great schools were centers of advanced investigation. 
 The study of the learning of the Greeks and Romans neces- 
 sarily carried with it knowledge of their political ideas, and 
 when a great mind like that of Montesquieu proceeded to 
 analyze the prevailing system, he could do no less than con- 
 demn the moral basis of it. The art of printing had come to 
 aid in the preservation of knowledge and the dissemination 
 of ideas, and while rigid censorship of all publications was 
 maintained, works like Montesquieu's Spirit of Laws, believed 
 not inimical to monarchical institutions, produced profound 
 effects on the minds of students. The church too ifurnished 
 its quota of reformers. Not all the clergy were content with 
 mere ritual and revenue. Many sought the real meaning of 
 the religion they professed to teach, and perceived how ut- 
 terly wanting in Christian fraternity was the despotism under 
 which they lived. The spirit of brotherly love and self-deny- 
 ing helpfulness to others, which pervades the teachings of 
 Christ, was altogether wanting in the court and among most 
 of the higher clergy, but there were many in the more humble 
 stations, who took the true spirit of Christ's teaching to heart 
 and sought practical application of them. 
 
 When Louis XVI convened the States-General for the first 
 time in 175 years to aid him in his financial difficulties, he 
 brought together moral forces which had been gaining strength 
 through those years, with which his government was un- 
 acquainted. The abuses of the kingly government were per- 
 ceived and condemned, and the true principles which should 
 govern the state were proclaimed. No representative bodies 
 
FRANCE 649 
 
 have ever formulated better statements of the true purposes 
 of government than those which carried on their deUberations 
 during the stormy period of the revolution. The formula of 
 ''Liberty, equality, fraternity," caught the hearts of the multi- 
 tude and was approved by the consciences of many who had 
 profited from the old regime. How then came it that, instead 
 of an era of real good will and fraternity among men, a 
 reign of blood and terror followed? Surely the poison did 
 not inhere in the principles advanced, but rather in the lack 
 of general understanding of them and inability to suddenly 
 substitute a just system for one of arbitrary power. It is one 
 thing to lay down the fundamental principles on which all 
 governments and laws should be founded, and quite another 
 thing to perfect a system of organized society, which shall be 
 able to enforce them in spite of the opposition of the selfish 
 and cunning. Not only is it necessary to formulate just 
 principles as the basis of the social structure, but also to place 
 the enforcement of them in hands that both can and will be 
 just and do right. The great multitude were accustomed to 
 stand in awe of the king and of the great men of his court; 
 they were unaccustomed to participation in the selection of 
 the men who should direct public affairs; they were ignorant 
 of state affairs and of the practical methods by which one class 
 of officials may be made to check the abuses of another. They 
 were accustomed to the abuses of unrestrained power, and 
 the first impulse naturally was to overthrow the king and his 
 courtiers who had oppressed them. If the necessity for doing 
 so be conceded, it was but the lesser task. The far more diffi- 
 cult one of constructing a new and better system for the man- 
 agement of public affairs remained. This new system must 
 be fitted to the then existing society with its inherited ideas 
 and prejudices. The leaders of the revolution made the grand 
 mistake of assuming that a system founded on lofty ideals 
 could be made readily acceptable to a nation whose leading 
 spirits were bitterly hostile to it, and in which a vast majority 
 were too ignorant to form definite opinions or to give ex- 
 pression to their wishes. The government did not fit the 
 people. 
 
650 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 In a despotism the habit of obedience to the estabhshed 
 authority furnishes the bond which maintains social order. 
 In a repubHc there must be a feeHng of general confidence in 
 the moral purposes of those placed in power, and a prevailing 
 disposition to tolerate sentiments honestly entertained, no 
 matter how erroneous they may appear. The leaders of the 
 opposing political factions soon made the fatal mistake of 
 imputing bad motives to each other, and then of indulging in 
 threats. The reign of terror was preceded by mutual distrust 
 and wild threatenings. The talk of intemperate leaders pre- 
 pared the ground for the guillotine. If statesmen could be 
 made to know that in morals the crime of advocating war 
 and wholesale slaughter is far greater than that of partici- 
 pation in it by those who become soldiers from a sense of 
 duty, there might be hope for the peace of the world. In 
 France there was distrust by one faction of another, then 
 threatenings then bloody butcheries. The principle was simi- 
 lar to that on which the more excusable wars come about, 
 mutual distrust, fear, hatred and then open violence. The 
 wars instituted by rulers, merely to gratify their ambitions, 
 have been far more numerous and their authors far more 
 criminal. The most pernicious man in public affairs is he who 
 advocates violence either between factions at home or with a 
 foreign power. Though in a defensive war if or the preserva- 
 tion of the homes of the people against either a foreign in- 
 vader or a domestic oppressor the noblest qualities of courage 
 and self-sacrifice for the good of others have often been 
 displayed, the ordinary business of the soldier is to fight, 
 kill and make desolate. War is always brutalizing and 
 demoralizing. 
 
 There were leaders of the revolution who did* not teach 
 peace, concord and mutual confidence, without which there 
 cannot be liberty, equality and fraternity, but sowed seeds of 
 dissension and advocated bloodshed as a remedy for social 
 ills. Here was the mistake which rendered a republic impos- 
 sible in their time, ifor the bloody military spirit naturally and 
 usually leads to a military despotism. Napoleon was the in- 
 carnation of the bloody ideals of those who condemned their 
 
FRANCE 651 
 
 countrymen to the guillotine. His hypocritical professions of 
 devotion to popular rights and hatred of kings and tyrants 
 caught the fancy of the multitude and blinded them to his real 
 qualities and purposes. The ideals of the great leaders of the 
 assembly and convention, though generations in advance of 
 the people, were not wholly lost however. Some immediate 
 advantages resulted. The first and most important perhaps of 
 the material gains came from the breaking up of the great 
 estates of the nobility and a vast increase in the number of 
 independent peasant proprietors. The extension of the edu- 
 cational system so as to greatly increase the number of chil- 
 dren taught was perhaps of equal or even greater permanent 
 value, and the propagation of fundamental principles of jus- 
 tice and human rights, though for the time productive of 
 many ills, exercised a profound influence for future good not 
 only in France but throughout Europe. Eighty years later 
 these principles had become so generally understood and rec- 
 ognized that a republic was established and has since been 
 successfully maintained. 
 
 France is to be congratulated, not only on the great progress 
 made within the last century, but also on the possession of 
 the high ideals of the revolution, which still stimulate to 
 continued improvement. 
 
 Authorities 
 
 Martin: History of France. 
 
 Guizot: History of France. 
 
 Taine: French Revolution. 
 
 Taine: The Ancient Regime. 
 
 Thiers : Consulate and Empire of Napoleon. 
 
 Brissaud : History of Private French Law. 
 
CHAPTER XXIV 
 
 The British Empire 
 
 The earliest inhabitants of the British Isles of whom we 
 have any accounts are styled Britons and are not classed as 
 Aryans. The first settlers of the latter stock are said to have 
 been Celts. Caesar says that in his time the inhabitants of 
 the interior were accounted descendants of the natives of the 
 island, while the maritime portions of the island were peopled 
 by invaders from Belgium, who had settled down and com- 
 menced to cultivate the soil. He says the country was very 
 populous and the buildings similar to those of Gaul, that they 
 had many cattle, that they used brass or iron bars for money, 
 that the inhabitants of Kent (Cantium), did not differ much 
 in customs from the Gauls, that many of the inhabitants of 
 the interior did not sow grain but lived on milk and meat and 
 wore skins for clothing, that they painted themselves dark 
 blue, wore their hair long, and shaved all but the upper lip, 
 that ten or twelve brothers or even father and sons had wives 
 in common. They used not only horses but also a kind of 
 chariot in battle and were brave and strong. It is impossible 
 to tell what race of men first inhabited the island. In the 
 earliest accounts we read of Britons, Picts and Scots as ante- 
 dating the advent of the Romans. Sometimes all are classed 
 as Celts, and again the Britons are spoken of as allied to the 
 Basques of the Pyrenees. Ireland was peopled by Celts and, 
 while authentic history of it in the time of Caesar is wanting, 
 popular traditions, handed down apparently with more than 
 ordinary trustworthiness, indicate that the people of Ireland 
 were at that time better organized and more prosperous than 
 those on the larger island. In religion the people of both 
 islands were Druids, with rites corresponding with those of 
 the Celts of France. The organization of society was essen- 
 tially tribal, with the authority of chiefs enlarged or con- 
 ess 
 
THE BRITISH EMPIRE 653 
 
 tracted according to individual capacity and the exigencies of 
 their wars. The Druid priests exercised much influence and 
 authority, of which, however, we have no very accurate 
 account. 
 
 The subjugation of England and of that part of Scotland 
 south of the Clyde and Forth was completed by Agricola about 
 A.D. 84. He even extended his operations into Sterling and 
 Perth and constructed a line of forts from the Clyde to the 
 Forth. In his conquests he employed five legions, which with 
 auxiliaries and cavalry are estimated to have made an army 
 of 50,000, indicating much resistance to the Roman advance. 
 The period of Roman occupation was barren of any events 
 of interest in the Hne of our investigation. Christianity was 
 introduced into the island, and the people seem to have ac- 
 cepted the religion of their conquerors much as they did their 
 system of government. No peculiarities of administration 
 and no modifications of Roman law to conform to the peculiar 
 circumstances or genius of the natives are micntioned, nor was 
 literature worthy of mention produced. Britain was merely a 
 Roman province, deemed of minor importance. About A.D. 
 400 the Roman legions were withdrawn from the island and 
 the natives were left free. 
 
 The Roman occupation of Great Britain was unproductive 
 of beneficial influence on the native population. It did not 
 come till the republic had departed and the military despotism 
 had taken its place. The principal end sought by the Romans 
 was the collection of taxes. Landowners were required to 
 pay a state rent on their estates of one-tenth, afterward in- 
 creased to one-seventh and even one-fifth the annual produce. 
 In addition to this corn for the soldiers and entertainment for 
 officials on their journeys were required, and the burden of 
 maintaining the roads and bridges fell on the landowners. 
 Traders were taxed on their goods and craftsmen and labor- 
 ers paid poll taxes. Customs were collected on imports and 
 exports and one per cent on produce sold in market. Per- 
 centages were often greatly increased by the officials who 
 gathered the taxes, the excess going to their private use. 
 Rome merely gave the people such protection and order as a 
 
654 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 military despotism affords. It did nothing to educate or 
 elevate, save as the Christian religion followed the legions 
 toward the close of the period of Roman rule. The quality of 
 this Christianity may have been somewhat higher than the 
 religion of the Druids, but it was closely associated with the 
 slavery and grinding oppression of imperial Rome. 
 
 In military organization they do not appear to have profited 
 from contact with the Romans. The Dutch tribes from the 
 low countries soon commenced the conquest of the island, the 
 Jutes being the first and gaining a permanent foothold in Kent 
 under the leadership of Hengest and Horsa. The date of 
 their landing is given as about 449. The Saxons then came 
 and settled around them in Sussex, Essex and Wessex. Later 
 came the Angles and made way farther north in East Anglia, 
 Mercia and Northumberland. Historians speak of the estab- 
 lishment of kingdoms, but the territory occupied by and the 
 number of people included within the so-called kingdoms 
 hardly warrant the use of such a term. The system of or- 
 ganization appears to have been a modification of that which 
 had prevailed among the Germanic tribes, adapted to the 
 enterprise of gaining a foothold in a new country. Each 
 band of invaders came with wives, children and chattels and 
 had its leader and chief men, but the power of the state re- 
 sided in the whole body of freemen. They did not seek the 
 subjugation of the native tribes and the establishment of a 
 government over them, such as the Romans had maintained, 
 but lands for themselves. They therefore killed or drove out 
 the natives who opposed them. The settlements they estab- 
 lished were mainly devoid of admixture with, the native 
 people, except from captive women and a few British slaves. 
 The movement was a transplanting of Germanic tribes 
 on English soil and crowding the native population out, 
 in much the same manner that their descendants came to 
 America and took land for occupation from the Indians. 
 The process of settlement in each case was gradual and 
 accompanied by exterminating wars. New territory was 
 conquered as the numbers of Saxons and* Angles increased. 
 They came as heathens worshipping Woden and the other 
 
THE BRITISH EMPIRE , 6S5 
 
 German gods. The process of conquest was slow, but con- 
 tinuous till about the beginning of the seventh century, when 
 the Saxons and Angles had become dominant over the 
 greater part of England and southern Scotland. The intro- 
 duction of Christianity among the conquerors is mentioned 
 as contemporaneous with the change from a process of ex- 
 termination of the Celts and Britons to one of more civi- 
 lized conquest. Though the whole island is now under the 
 rule of the same government, the descendants of the ancient 
 inhabitants, who preceded the Saxons and Angles, still abide 
 in Wales, Cornwall, Scotland and to some extent in other 
 parts, with surprisingly little admixture of Dutch blood. The 
 invaders preserved their own language, laws and customs, as 
 well as purity of race, taking but little of either from the 
 ancient inhabitants or the remnants of Roman civilization. 
 They brought with them the German system of land tenure, 
 the title resting primarily in the community, which annually 
 assigned to each his special holding for purposes of tillage 
 and habitation, reserving the pastures and timber lands to be 
 used in common. The custom of changing private allotments 
 did not long continue. The mark or township was the primary 
 political division, having its assembly of freemen by which 
 its affairs were regulated and its common property managed. 
 The division of the country into tithings, hundreds and coun- 
 ties did not take place till later, after a central authority had 
 been established. The invading Saxons and Angles came 
 under the leadership of their Hertogen in war who in peace 
 were their earldormen. There were the freemen, who were 
 recognized as entitled to take part in all public assemblies as 
 well as to fight in the wars, an intermediate class not members 
 of the tribes, and the thralls or slaves. Some distinctions ex- 
 isted among freemen, forming the germs of future nobility. 
 The military leader, there as on the continent, had his imme- 
 diate personal followers, who gave him added strength and 
 importance, and on whom he conferred special favors as a 
 result of successful military operations. No right of heredi- 
 tary leadership was recognized, but the free choice of the 
 people usually fell on members of the chief families, reputed 
 
656 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 descendants of Woden. As the successful leaders extended 
 their conquests and increased their ifollowings a greater meas- 
 ure of authority was naturally assumed. The public assembly 
 of a mark might well include all the freemen, but when the 
 authority of a single man was recognized throughout a large 
 district and by a great number of people, only the principal 
 men attended the national assemblies. The development of 
 kingly authority among the new masters of the soil was slow 
 and gradual, and came as a result of military combination. In 
 course of time the forces of many communities, led by their 
 separate chiefs, were united under a superior leader, who was 
 styled a cyning (king), but this authority came from the people 
 who chose him, and his influence depended largely on his per- 
 sonal qualities. In consonance with the prevailing ideas of 
 equality of rights among freemen, the law of inheritance 
 gave to each male child an equal share in the possessions of 
 the parent. No rule of primogeniture was thought of. Cap- 
 tives and their offspring were slaves, without political or prop- 
 erty right. 
 
 There were no written laws. Custom and tradition alone 
 furnished the rules to be observed. These recognized payment 
 of weregeld for the killing of another, the amount depending 
 on the rank of the person slain. Of the elaborate system of 
 feudal tenures or of the nice legal rules which developed later, 
 the earliest settlers knew nothing. They were neither town 
 builders nor traders, but each primary community occupied 
 its small district, tilled the soil, tended its herds and lived on 
 the products of domestic industry. The assembly of the free- 
 men of the mark exercised primitive legislative, executive and 
 judicial [functions and regulated local affairs. It may be 
 here noticed that in Kent, which was first occupied and soon 
 shielded by the Saxons on the north and west from the attacks 
 of the natives, primitive customs and ideas were better pre- 
 served and more persistent than among those who came later 
 and fought harder. The custom known as gavelkind, by which 
 the lands of the father are divided among all his sons instead 
 of descending to the eldest alone, may be mentioned as a sig- 
 nificant one. This first conquest under the leadership of Hen- 
 
THE BRITISH EMPIRE 657 
 
 gest and Horsa is spoken of sometimes as the establishment 
 of a kingdom, but it was a kingdom in which the assembled 
 freemen ruled. The west Saxons, who settled in 495 in 
 Hampshire under the leadership of Cerdic and Cynric, their 
 earldormen, took the lead in developing a central authority 
 from which the first kings of England came into being. 
 
 For brevity let us term all the Dutch invaders, — Jutes, An- 
 gles and Saxons — as Saxons, though the name be not strictly 
 correct. These with the Celts are the main progenitors of the 
 present population of the British Isles. It is difficult, and in 
 fact impossible, to give a full and definite description of the 
 organization of the Celtic tribes at or prior to the Saxon in- 
 vasion. The accounts we have of them are, to a considerable 
 extent, deductions from much later observations and the ac- 
 counts of the Celts in France at a considerably earlier date. 
 That polyandry existed among them seems well established, 
 both by the direct statement of Caesar and the prevalence of 
 the custom in later times. Polygyny was also allowable. 
 The Saxons, in common with the other Germanic tribes, 
 were monogamists, and the comparative purity of their do- 
 mestic relations is beyond doubt one of the greatest sources 
 of their national strength. Among the Celts, however, 
 women were not enslaved, but their relative position seems 
 to have been about as high as with the Germans. Relation- 
 ship was traced by the female line and female leaders, and 
 later rulers, were not uncommon. The women were also 
 often accorded the privilege of going to war along with the 
 men, and were not wanting in courage. The joint family 
 (Irish fine) owning and cultivating a family estate under the 
 general direction of an elective head, usually the oldest or 
 most capable male member of the house, is sometimes men- 
 tioned as the political unit in Celtic society. This family was 
 a kind of general partnership with a common estate, protecting 
 its members and answering for their conduct, and might in- 
 clude several generations and persons removed several degrees 
 from a common ancestor. From this joint family the petty 
 tribe or village (tuath) developed, and from the combination 
 of more or less of these according to circumstances, the vicissi- 
 
658 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 tudes of war and the possession of land, the tribe was formed. 
 Over the village {tuath) a chief was chosen and over the tribe 
 a king, who might be deposed. His authority was small, but 
 grew with time, the increase of contributions and the exercise 
 of military power. A singular custom was that of following 
 the installation of a king by the election of a Tanist, who 
 would be his successor. In case the Tanist died before the 
 king another was chosen at once, so that there was always a 
 successor to watch the king, often chosen from a rival line. 
 The most substantial basis for the king's power in early times 
 was his possession of a portion of the tribal lands in addition 
 to his private property. To this was added a right to quarter 
 on his subjects and a system of tribute in kind from the family 
 to the village king and from him to the over king, amounting 
 in later times to a sort of feudal system of land tenure. The 
 whole system seems to have been based on the idea of relation- 
 ship and the selection of heads of the households. Provision 
 for every member of a household was recognized as incum- 
 bent on the joint family, and the chief or king was but the 
 head of the enlarged household. Neither popular assemblies 
 nor judicial tribunals were known, the gatherings were domes- 
 tic or tribal, and general law was wanting. Family and 
 tribal customs furnished the rules for the enjoyment of prop- 
 erty and for the domestic relations. The tribal or clan system 
 continued in full force among the Celts of Scotland to a much 
 later time than elsewhere. In Ireland the standing of the 
 individual came, at a comparatively early date, to depend on 
 his possessions. The representative citizen was a landowner 
 or member of a land-owning family, the possessor of twenty- 
 one cows and styled aire, or bo-aire where he had only the 
 cattle. A higher rank was that of flath, based on superior 
 holdings in severalty. The general system, however, was one 
 of common tenure and cultivation by a greater or less number 
 of kindred people. 
 
 The Saxon invaders came as pagans seeking an abiding 
 place. They brought with them their families, their customs, 
 and their race characteristics. Purity of domestic relation 
 is mentioned as one of these. Though monogamy was the 
 
THE BRITISH EMPIRE 659 
 
 rule, there were those among the rich and powerful who in- 
 dulged in a plurality of wives, ,but such cases were exceptional 
 in any class. It seems beyond doubt that women were more 
 highly respected by them than among most barbarous and some 
 more cultured nations, yet it must be remembered that they 
 were a coarse and brutal people and the mating was not in ac- 
 cordance with refined or romantic notions. The husband 
 bought his wife, paying a part of the price to her father and a 
 part as a provision for her. If she misconducted herself after 
 marriage, the husband could expel her from his home, if an- 
 other man ran away with her, he was required to pay the hus- 
 band the same penalty as for taking a life and in addition to 
 buy him another wife. Over his children the father had full 
 power, but over his wife his authority was limited by the 
 claims of her relatives. If she was murdered, they were en- 
 titled to the were-geld, and if she committed murder they were 
 required to pay for it. A marked difference between the 
 parental authority of the Roman and of the German father 
 was that, while that of the former continued through life, that 
 of the latter ended when the son was invested with shield and 
 spear and became a warrior and citizen. For crimes com- 
 mitted the right of redress was in the injured party's own 
 hands, subject to exemption from his vengeance by payment 
 of money. For murders a scale of prices was fixed, graduated 
 according to the rank of the person killed. The principle of 
 the lex talionis was recognized, if payment was not ma'de, and 
 life for life, eye for eye, etc., were exacted. 
 
 In the social scale four orders are mentioned. There were 
 slaves, theows or thralls, but these were not numerous, nor 
 w^as their condition one of great hardship. They were assign- 
 ed homes and required to till the land and return part of the 
 produce to the master. Offenses against slaves were punish- 
 able by fines, graded according to the rank of the master. 
 Next in order above them were the loet, theoretically free but 
 bound to the land and the service of the lord. Their persons 
 could not be sold as could the slaves, but they could neither 
 desert the lord nor his land, which they were bound to till for 
 his benefit in part and also to do him services of various kinds. 
 
66o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 The ceorl was the ifreeman and the soldier, entitled to his al- 
 lotment of land and to his vote in the public assembly and 
 bearing his share of public responsibility. At the top of the 
 social ladder was the eorl, for whose life triple the sum of 
 were-geld paid for that of a ceorl was required. Just what 
 formed the basis of this distinction at first, it is hard to tell, 
 but later it was based on land tenure. This rank does not ap- 
 pear to have carried with it any political power, but merely a 
 higher social status and protection by higher fines for injuries 
 sustained. Political distinction among the tribes at the time 
 of the invasion began and ended with the ealdormen, called 
 in war hertogen, chosen leaders of the free warriors. In con- 
 sidering this organization of society it must be borne in mind 
 that the principles of its construction were not declared by 
 any great recognized legislative or governmental authority, 
 but resulted from the environments and peculiarities of the 
 people. The petty kings and the feudal system, which devel- 
 oped later, came as products of new environments and con- 
 tinued military operations. Arbitrary powers are rarely 
 conferred by the people, but are usually assumed by military 
 leaders having a sufficient organized force to compel obedience 
 to their authority and submission to the terms imposed. In 
 studying the evolution of kingly rule in Britain we shall make 
 better progress, if we wholly disabuse our minds of the 
 idea that in its inception it rested on any moral basis. The 
 Saxon invaders came seeking homes for themselves at the 
 expense of the natives. They offered no price but took the 
 lands by force. They killed or drove away the ancient inhabit- 
 ants, robbing them of land and all other property they could 
 find. The utmost limit of their mercy was to let a few live in 
 slavery. The leaders of these invading tribes were bloody and 
 merciless, and their followers shared the same spirit. Of 
 justice based on any moral foundation they had little if any 
 conception. Might was the sole test of right in the struggle 
 with the Celts, and soon became the basis of rights asserted by 
 the leaders. There, as on the continent, favorite leaders were 
 surrounded by followers closely attached to their persons and 
 interests, classed as gesiths, comrades, or thegns, servants. 
 
THE BRITISH EMPIRE 66i 
 
 These gave the chief his neucleus of power and were often the 
 cause of his selection as leader of the tribe in war. The 
 gesiths ate at the lord's table, lodged in his house, were his 
 companions in battle during war and in hunting, drinking and 
 gambling in times of peace. The thegns were necessarily in- 
 struments of his will and dependants on his table. For the 
 support of these dependants the leader required an increased 
 allotment of land, and with their support he was in a position 
 to enforce his demands for a large share of any newly acquired 
 territory. Early in the history of the Saxon conquest there 
 came to be two classes of holdings, those of the freemen with 
 their system of common tenure, changing allotments for culti- 
 vation and regular rotation of crops ; and the holdings of the 
 favored leaders and their immediate companions. There soon 
 came to be folk-lands, and hoc-lands. The folk-lands descended 
 to the heirs and could not be devised away from them, while 
 the hoc-lands, book lands, could be given by will to whomso- 
 ever the owner pleased. Boc-lands again were often exempted 
 from the common burdens by the terms of the grants. In the. 
 earliest periods of Saxon occupancy the new lands were dis- 
 posed of by the assembly of freemen, and the share of the 
 leader, as well as of the ceorls, was determined by the general 
 voice, but, as the following of the Hertogen increased and 
 their powers grew, they assumed the kingly title and consulted 
 only the wit an or council of leading men. At first the holdings 
 of the leaders did not differ from those of other freemen. 
 They had land ifor their cattle and for cultivation, but no 
 power of taxation and no system by which the tribe was re- 
 quired to contribute to their support. As they came into pos- 
 session of large allotments of lands, they gradually evolved a 
 system of granting portions to their followers on terms of 
 service and of payment of certain dues. The leaders also 
 naturally became the principal slave owners, and were thus en- 
 abled to cultivate larger tracts than the common people. One 
 of the earliest perquisites of the petty kings was derived from 
 fines and forfeited estates. Sometimes these were imposed for 
 real transgressions of just laws, but perhaps more frequently 
 because the king wanted revenue or estates. As the kings 
 
662 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 extended their power over greater districts and more people, 
 the influence of the popular assembly on the general affairs 
 of the tribe or petty kingdom diminished and that of the mili- 
 tary head grew. The zvitan was more clearly allied in interest 
 with the king than with the freemen. Law-making began, and 
 its purpose was to increase the power and the privileges of 
 the king and his trusted followers. The leading purpose of 
 laws, promulgated as a result of military organization or con- 
 quest, is rarely if ever the promotion of justice between all 
 classes, but rather the reverse, the establishment of rules of 
 special privilege casting burdens on the many for the enrich- 
 ment of the ifew. The Saxon leaders soon assumed the title 
 of kings and, while still elected and sometimes deposed by vote 
 of the assembled freemen, their powers and privileges grew 
 rapidly. They summoned the national meetings and called out 
 the military force. On their journeys they were entitled to 
 entertainment and could call on the people for carts and ani- 
 mals to transport them. Their earldormen and officers might 
 also do the like. The judicial power, which primarily rested in 
 the assemblies of freemen, was assumed by the wit an in im- 
 portant matters and then by the king. In the earliest stages of 
 the growth of kingly power the concurrence of the witan was 
 necessary, for on its members the king relied for the enforce- 
 ment of the decision, but with the growth of his power came 
 greater recognition of his right to rule, till he alone decided 
 and others executed his will. The division of the people for 
 state purposes was into townships or tithings and hundreds, 
 containing theoretically and at first perhaps actually ten and 
 one hundred freemen, respectively. The terms, however, soon 
 came to denote territorial divisions rather than actual numbers. 
 In each of these in primitive times public affairs were regulated 
 by public assemblies of the free warriors, who chose their local 
 head men. The township assembly laid off the common land 
 for tillage, assigned to each his share of the common field and 
 ordered the succession of crops and fallow. The hundred was 
 accountable for the preservation of order, the punishment of 
 crimes and came to be the unit for purposes of finance and 
 police. A monthly gemot or court was held, at which all the 
 
THE BRITISH EMPIRE 663 
 
 freemen sat as judges. Later these were presided over by 
 officers appointed by the king the gerifa, reeve or sheriff. 
 Above these were the county courts or general assembHes of 
 the people of the counties. These in early times corresponded 
 with general assemblies of the tribes and exercised the sov- 
 ereign political and judicial power. This power soon passed 
 to the king and his witenagemot, which was not a representa- 
 tive body selected by the freemen, but the companions of the 
 king and the richest and most daring members of the state. 
 With the transfer of political power from the body of free- 
 men to the king and his council of followers, in an age when 
 might alone made right, came naturally a change of the pur- 
 poses of legislation. Common ends and interests were no lon- 
 ger objects to be attained, but special interests and persona] 
 privileges. As the various bands of Saxons and Angles fol- 
 lowed after the Jutes and drove back the more ancient inhabi- 
 tants from a large part of the island, jealousies among leaders 
 and a desire for each other's possessions brought on wars be- 
 tween the invading tribes as well as with the Celts, and after 
 the introduction of Christianity and long contact between the 
 races, alliances were sometimes formed in which Scots, Picts 
 and Saxons fought other Saxons for mastery. By the end of 
 the sixth century we read that the Heptarchy had been es- 
 tablished, and also that there were seven kingdoms among the 
 Picts, but these cannot be regarded as permanent. War was 
 the favorite pursuit of the leaders and largely of the people. 
 The morals of the times were essentially those of barbarous 
 tribes. Drunkenness and gambling were common vices. The 
 primitive idea of united action against the native Celts for the 
 common benefit faded away as leaders gained power and 
 fought for personal aggrandizement rather than tribal advan- 
 tage. The democratic customs, which had prevailed on the 
 continent, were not extinguished at a blow, nor entirely at any 
 time, but the growth of kingly power and its necessary at- 
 tendant, the power of his chief supporters, came rapidly at the 
 expense of primitive democracy. When the law-making power 
 fell into the hands of the kings and their henchmen, they took 
 good care to add to the burdens of the people and increase their 
 
664 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 own revenues and powers. Injustice was the purpose of the 
 lawmaker and continued to be for centuries, till an intricate 
 system of most unjust laws was evolved and taught as divinely 
 ordained and devised for the common good. In England, 
 though there have been times when temporal and spiritual 
 power were opposed, in the main the kingly oppressors have 
 found their best and strongest support in the clergy, who have 
 diligently taught obedience and submission to king and church. 
 Education is the sure foundation of any system, whether of 
 government or religion. The people must be taught to obey 
 and to believe. In England the increasing armies of the petty 
 kings became schools, in which free men were taught obedi- 
 ence to the commands of leaders. The churches became 
 schools, in which the divine right of rulers was inculcated and 
 the duty of submission and contribution to the treasury of the 
 king and of the church was constantly proclaimed. In course 
 of time the rights of kings to oppress and of high church offi- 
 cials to enjoy great revenues came to be the only rights dis- 
 cussed, and the fundamental moral principles affecting the just 
 relations of man to man were often entirely lost sight of. 
 Some good men there were in power in church and state at 
 times, but the early rules of advanced and enlarged organiza- 
 tion of society were almost exclusively in the interest of the 
 promoters of the organization. The laws of King Ethelbert, 
 who ruled in Kent and the south at the advent of the mission 
 of St. Augustine and was converted under his preaching, are 
 not much but a classification of fines to be paid for murders 
 and thefts committed, graded according to the rank of the 
 party injured, and according the church and clergy protection, 
 even greater than that afforded the king and his officers, that 
 is, punishing offenses against them with even higher fines. The 
 power of the church was rapidly extended, and the spiritual 
 rulership of Rome became a substantial exercise of actual 
 power through the medium of the officials of the church. It 
 would be foreign to our plan to attempt to follow the details, 
 more or less questionable, of the struggles of the kings of Sus- 
 sex, Wessex, Kent, Mercia, Northumbria and Anglia with 
 each other or with the Celtic population, or the schemes by 
 
THE BRITISH EMPIRE 665 
 
 which the papal power and the importance of Bishops and 
 priests was advanced. It is a dreary tale of cruelty and wrong. 
 Wars ceased to partake of the characteristics which prevailed 
 in the early days of the Saxon advance into England, and be- 
 came merely struggles for the ascendency of leaders, where the 
 common people on both sides of the contest suffered, without 
 substantial ground for hope of gain. As time wore on Saxon 
 became opposed to Saxon more than to Celt, and the princi- 
 pal object was to subjugate Saxon states to covetous leaders. 
 The heptarchy was ruled by a varying number of kings till 
 Egbert, trained in the military school of Charlemagne, came 
 to the throne of Wessex and about 827 succeeded in extending 
 his power over all the other states and Wales. His govern- 
 ment of the other kingdoms was not through an official system 
 acting under his direction, but by tributary kings, who ac- 
 knowledged him as their sovereign. The union of all the petty 
 kingdoms, thus effected, was not productive of the advantages 
 of one central government as a protection against outside foes, 
 for he failed to establish a system of military organization 
 adapted to defense against invaders by sea. When Egbert 
 became sovereign of all the Anglo Saxons, nearly four hun- 
 dred years had elapsed since the advent of the Jutes in Kent. 
 Before this event a new movement of people bearing a differ- 
 ent name set in from the Jutland peninsula, whence the Jutes 
 had come. In 793 there was a landing of Northmen at Lindes- 
 farne, perhaps not the first of their incursions. This was fol- 
 lowed by landings of Danes and Norsemen at various points in 
 England, Scotland and Ireland and by 832 Thorkel had es- 
 tablished himself as king in the north of Ireland at Armagh. 
 The first attacks were merely by marauding bands, but in 
 England, as in Ireland, they came in increasing numbers. 
 About 850 a party wintered on the island of Sheppey, and in 
 the following year, reinforced with 350 ship loads of warriors, 
 they sailed up the Thames, sacked and burned London and 
 Canterbury. Permanent settlements were effected about 866, 
 and the Danes in large force invaded East Anglia and thence 
 overran Deira and Northumbria. The invaders were wor- 
 shippers of Woden and the heathen gods, whom the Saxon 
 
(^ EVOLUTION OF GOVERNMENTS AND LAWS 
 
 invaders of four hundred years before had worshipped, and 
 they were merciless to the clergy as well as the laity. Mere 
 piratical plundering and murdering in course of time became 
 converted into the greater devastation of continued war with 
 merciless destruction of all who came in their way. By 876 
 a disposition to settle down and till the soil began to manifest 
 'itself among the invaders, after they had made a great part of 
 England desolate, and Half dene began parcelling out lands 
 among his followers. The reign of Alfred, 871 to 900, has 
 been a favorite basis for romantic tales of which he was the 
 hero. From the Saxon forces in a condition of utter disper- 
 sion he organized armies and extended his power over south- 
 ern England, defeating the Danes in many battles. The 
 devastating wars had resulted in the extinguishment of all 
 learning. Alfred has the credit of establishing schools and 
 aiding the clergy. As a military organizer he exhibited energy 
 and capacity and not only prepared for the defense of his 
 country by land forces but built ships and met the Northmen at 
 sea, where he gained some victories. His schools were neces- 
 sarily dependent on monks and priests, whom he invited from 
 other parts of the island and the continent to instruct the no- 
 bility. He also caused the Winchester Chronicle to be written. 
 His fame is doubtless largely due to the scholars whose ser- 
 vices he employed. He published a code of laws, compiled 
 from the previous codes of ^thelbert, Ine and Off a, with ex- 
 tracts from the book of Exodus, thus making a single system 
 of laws for his kingdom, which, however, contained no orig- 
 inal legislation. By this time kingly power had made con- 
 siderable advance. The king in person exercised the supreme 
 judicial power and heard appeals from the inferior courts, 
 which had become sore oppressors of the lower classes through 
 the forms oif judicial proceedings. He is credited with having 
 been inclined to curb the nobility and award some measure of 
 justice to the common people. The ealdormen and reeves had 
 ceased to be elective officers and held by appointment of the 
 king. They exercised their judicial functions mainly to estab- 
 lish rules increasing their own privileges and those of the 
 wealthier order. Taxation had made some progress and Al- 
 
THE BRITISH EMPIRE 667 
 
 fred had his civil hst of expenditures for his household, for 
 public works, and gifts to foreigners. He was a zealous 
 churchman, imported monks to found a monastery and ap- 
 pointed his own daughter abbess of a nunnery. He recon- 
 structed in some measure the system by which the country had 
 been divided into townships, hundreds and shires. Over each 
 ten householders was a tithing man and every man was re- 
 quired to register in some tithing. The whole tithing was 
 made accountable for the conduct of each member. No one 
 could change his habitation without a certificate if rom the head 
 of the tithing to which he belonged. This was rendered neces- 
 sary by the great numbers of robbers and vagrants, caused by 
 the breaking up of bands of Danes and Norsemen and the 
 disorganization of Saxon society resulting from the wars. 
 The hundreds were held accountable for crimes committed 
 within them, and courts were required to be regularly held in 
 tithings, hundreds and counties for the administration of jus- 
 tice. In nothing is the growth of royal power better shown 
 than in his dealings with public lands. From his reign dates 
 the exercise by the king of sole power to grant boc-ldinds by 
 charters in his own name without consultation with his Witan. 
 Alfred had visited Rome in his youth and was a devout adher- 
 ent of the pope, with whom he kept in correspondence. 
 
 Though Alfred made much headway against the Danes, he 
 did not drive them from the island, but they retained their 
 holdings in the north until the reign af Athelstan, an illegiti- 
 mate son of Alfred's son Edward, when the Saxon's sover- 
 eignty was acknowledged by the Danish kings. Edward made 
 a law requiring all sales of goods to be made in walled towns 
 in presence of the Port-reeve. The gerifa or sheriff was made 
 the primary judge in criminal causes and required to hold a 
 court of the hundred once every four weeks. In the period 
 from Alfred to Athelptan the system of trial before the free- 
 men of the hundred is said to have been modified to a trial 
 before a jury of twelve, though it is impossible to fix definitely 
 the date at which this system was first established. That it 
 has its foundation in the ancient custom of administering jus- 
 tice by judgment of the assembled freemen there seems no 
 
668 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 doubt, but the power of the king and his subordinate officers 
 grew and that of the freemen waned correspondingly. Athel- 
 stan is given credit for a law giving each merchant, who had 
 made three long voyages, the rank of thane. He is said to 
 have imposed an annual tribute on the Welsh of twenty pounds 
 of gold, two hundred pounds of silver and twenty-five thou- 
 sand head of cattle, apparently a heavy burden for those times. 
 He enjoys the distinction also of having contracted marriages 
 for his sisters with distinguished foreign princes, one with the 
 father of Hugh Capet, another to Otto, afterward Emperor 
 of Germany, a third to Louis, king of Provence, and a fourth 
 to Charles the Simple. A king of England had thus attained a 
 standing among crowned heads and a desire for alliances with 
 them for members of his family. 
 
 With this growth of kingly power came also increased sever- 
 ity of rule and heavy punishments for petty offenses. Theft 
 of property worth over eight pence by a person over twelve 
 years old was made punishable with death. The growth of the 
 ifeudal system was promoted by requiring that "lordless men, 
 of whom no man can beget his rights" be required to find 
 them a responsible lord in the folkmote. Trial by ordeal as 
 a possible escape from punishment for crime had come into 
 use. The ordeal by hot iron was conducted with religious 
 ceremonies, one method involved the carrying by the accused 
 of a hot iron in his hand, previously sprinkled with holy water, 
 a distance of nine feet, where he might drop it. The hand was 
 then bound up, and his guilt or innocence was declared after 
 three days by the appearance of it. The ordeal by hot water re- 
 quired him to put his hand in boiling water and take up a stone 
 immersed in it to the depth of the wrist or even the elbow. 
 In the ordeal by cold water he was immersed in a pool, if he 
 sank he was innocent, and if he floated he was guilty. 
 The trial by ordeal was supposed to be a method of obtaining 
 a divine judgment and the acquittal of an innocent man by 
 special miracle wrought in his favor. Its use shows the bar- 
 barity and gross superstition of the age. In keeping with this 
 were laws regulating the payment of church dues, some of 
 which were newly devised. Not only were there tithes, but 
 
THE BRITISH EMPIRE 669 
 
 icirk shot, plough alms, and soul-shot, the last named a burial 
 fee. Yet there began to be thoughts of charity, and Athelstan 
 directed that one poor Englishman be fed from each two of 
 his farms. 
 
 In the reign of his successor Edmund a universal oath of 
 fealty to the king was required, showing the growth of feudal 
 ideas. There were no marked changes in the system or the 
 general conditions of the kingdom till 980, when fresh Danish 
 invasions from over the sea began in the old manner with pil- 
 laging and slaughter. These were followed by others, until in 
 991 King Ethelred paid tribute to the invaders, without there- 
 by obtaining protection from further marauding. The growth 
 of kingly power and of privileges of the nobility had not re- 
 sulted in much but corresponding oppression for the multitude. 
 The people did not even gain the advantage of protection from 
 foreign enemies through an efficient military organization. 
 The Danes and Norwegians continued to come and to gain 
 victories till in 1016 Cnut, the Dane, established his power over 
 all England. He fortified his position by making the clergy 
 his friends and increasing the already grossly oppressive power 
 of the great landholders over their dependents. He was politic 
 as well as warlike and summoned a great W it ena gemot to set- 
 tle his right to the throne. They promptly acknowledged him 
 as their lawiful sovereign. He had the good sense to accept the 
 system of laws substantially as he found it, and to adapt his 
 policy to the prejudices of the people. He was remorseless in 
 removing obstructions to his power and did not hesitate to kill 
 those whose influence he feared. He enforced the demands of 
 the clergy for tithes and dues in order to secure their hearty aid 
 in maintaining his authority. He strengthened the power of 
 the nobility by enlarging their judicial functions over their de- 
 pendents. There was a distinct increase in the severity of 
 punishments. The infidelity of a wife was punished by loss 
 of her nose and ears, perjury by death, confirmed offenders 
 were mutilated by cutting off feet, hands, putting out their 
 eyes, or other horribly cruel mutilation. 
 
 The growth of the power of the clergy is indicated by the 
 grant to the bishops of final jurisdiction in cases of murder. 
 
670 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 That the king, who claimed all forfeiture of boc-lands, had be- 
 come a greaf land owner is shown by the fact that he required 
 his reeves to keep him supplied from the produce of his own 
 lands, without levying involuntary contributions. Cnut or- 
 dained that the lord should not take more than his proper 
 heriot on the death of his vassal, and that the rest should be 
 distributed under the lord's direction to widow and children or 
 other relatives. The lords, being the judges, seem to have 
 been inclined to extend the amount of the heriot, but Cnut 
 limited it to a fixed scale according to the rank of the deceased. 
 This scale, however, only fixed the charge on the estates of the. 
 nobility, leaving petty tenants still at the mercy of their lords. 
 XTnut's power did not depend on the voluntary support of the 
 nobility or clergy or both. He kept at his back a strong body 
 of armed men, his house carles, under pay, estimated all the 
 way from 1,400 to 6,000 men. To support these he imposed 
 Danegeld, a direct land tax. 
 
 Though Cnut had ruled England, Denmark and Norway, on 
 his death his empire fell in pieces. His son Harold took Eng- 
 land's throne from 1035 to 1040, followed by Harthacnut, 
 another son, from 1040 to 1042, with whom the Danish 
 dynasty ended. 
 
 The reign of Edward the Confessor, 1042 to 1066, fol^ 
 lowed by Harold January to October 1066 concluded the 
 period of Saxon dominion. Though the system of laws had 
 undergone nothing termed a radical change of the constitu- 
 tion, and though there were still the same classes of society 
 as in the early days, the social structure through changes in 
 proportions had become altogether different from that of the 
 fifth century. There were still freemen, owning their lands 
 without being subject to the payment of rent or tribute to an 
 overlord, but they were few in number and even these were 
 subjected under the Danes to a tax of Danegeld on their 
 lands, which no early Saxon paid to any ruler. The scheme 
 of legal title to the face of the earth was made to work out 
 the result of giving to the king and the nobility dominion 
 over the multitude. The law of inheritance, so subtle and 
 far reaching in its effects, steadily fortified the power of the 
 
THE BRITISH EMPIRE 671 
 
 nobility. The ownership of a large tract of land, assigned to 
 him by the Heretog or king as his part of the spoils of a 
 newly conquered district or an estate seized by the king from 
 some subject, was passed down by inheritance from genera- 
 tion to generation, giving to the heir the same wealth, social 
 position and political influence as that which his ancestor had 
 held. The weak freeholders were led to seek the protection 
 of powerful neighbors and in return for that protection did 
 homage, pledged feudal service and thus fell, not within the 
 protection, but under the power of the lord. Ambition to rule, 
 gain wealth and greater power was the dominant passion of 
 the leaders, and wars for the aggrandizement of lords tem- 
 poral, and often of lords spiritual, became common. Murder, 
 robbery, wholesale burning and desolation of districts in the 
 name of the so-called right of some earl, duke, bishop or 
 king were common occurrences, and to this day the questions 
 as to the technical legal foundations of the claims of the re- 
 spective leaders are gravely discussed, as if matters involving 
 some principle of justice. It was in fact merely a question as 
 to which man should be permitted to take of the earnings of 
 the people inhabiting a district all above a bare subsistence, and 
 stand in a relation to them which should give the power to 
 enforce the performance of military services. Though there 
 were assemblies of the people under much the same names as 
 in early times, the meaning of terms had been greatly 
 changed. The wit an or witenagemot .of the kingdom had 
 wholly lost its ancient popular character. It meant merely a 
 gathering of earls, bishops, abbots and such of the kings 
 thegns as he saw fit to summon. These lords came to the 
 great assembly, often followed by a large number of retainers, 
 but it was the lords only who had any voice in the witan. 
 Though there were still meetings of the towns, hundreds and 
 shires, it was only petty concerns that they were allowed to 
 decide. In the folkmote of the county not all the freemen 
 assembled, but the small towns sent four men and their reeve, 
 and the large twelve. Twelve thegns were appointed as a 
 committee to transact the business. The earl, the bishop and 
 the sheriff, all deriving their appointments from the king, were 
 
672 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 present and really directed the proceedings. Through the 
 county courts the demands of the clergy, and of the land- 
 lords, were enforced in accordance with the rules they had 
 succeeded in having established, which were called laws. 
 Criminal causes were tried and offenders punished. From the 
 decisions of this court an appeal lay to the king. The sheriff 
 appointed by the king convened the court of the hundred and 
 presided over it. While the whole body of freemen were still 
 the judges, twelve selected men actually decided the causes. 
 The direct taxes, the Danegeld and ship geld, were assessed 
 against the hundred as a unit, and a part of the business of 
 the court of the hundred was to apportion it among the town- 
 ships. In the township meetings the nearest approximation to 
 popular rulership was still retained. Matters relating to the 
 repair of roads, the rules for the cultivation of lands and the 
 enjoyment of what still remained of common property, were 
 disposed of at these meetings. In these the lord of the manor 
 soon dominated, and his steward presided at the meetings, 
 which were converted into the Courts Baron, Customary 
 Courts and Courts Leet of later times, as the feudal system 
 grew in strength. Cities and towns had begun to grow, but 
 there was little trading or manufacturing, and the organiza- 
 tion of town and country was practically the same, the largest 
 cities ranking as counties, the medium ones as hundreds and 
 the villages of sufficient importance as townships. Of a total 
 in round numbers of 283,000 adults, it has been estimated that 
 there were 1,400 full owners of land, 7,800 mesne lords, hold- 
 ing under a superior, 1,100 clergy, 8,000 townsmen, 15,000 
 fieemen, 2,600 merchants, craftsmen, bailiffs, etc., 25,600 
 (male and female) slaves, and the balance about 222,000 were 
 so bound, either to the soil or to the service of a lord, as to 
 be practically under his power and at his mercy.^ 
 
 Of course strictly accurate figures are not to be had, but the 
 fact is beyond question, that the great mass of the population 
 had become subject to the power, under more or less limitation 
 in practice, of the great landholders, who through their title 
 to the soil enforced by their house carles or personal followers, 
 
 * Ramsey's Foundations of England 512. 
 
THE BRITISH EMPIRE 673 
 
 seized also substantially all political power. Thus the foun- 
 dations of feudalism in England were well advanced before 
 the advent of the Normans, and lawyers had already begun to 
 thrive on litigation over land tenure, but questions of title af- 
 fecting large districts were usually decided by the sword and 
 battle-axe, rather than by any tribunal. 
 
 The church had brought in some little knowledge of let- 
 ters, and our histories of the times come from native writers 
 of that age. But neither the learning of the church nor the 
 moral teachings of Christ had extended very far or made a 
 very deep impression. No moral obstacle was recognized as 
 standing in the way of the strong leader, who could take 
 what he wished by force. To kill an enemy was still laudable 
 and glorious, rather than otherwise, and in doing this to kill a 
 multitude of his underlings but added to the murderer^s re- 
 nown. To ravage, burn and destroy, and thereby expose 
 women and children to the elements and to starvation, were 
 regarded as necessary attendants of the enforcement of the 
 demands of a lord, and even to butcher them aroused no 
 general condemnation from other lords. Some progress had 
 been made in the organization of society, and the church had 
 brought in an advanced code of morals, but neither the kings, 
 lords nor clergy had much thought about justice among men, 
 cr the actual application of Christian morals to human affairs. 
 The power of kings and lords was established for this benefit 
 and regarded as their property. The high clerical positions 
 were similarly esteemed. The rank of a lord was measured 
 by the extent of his land, and of a priest by his income. 
 Neither was rated according to the services he rendered to 
 others or the value of his moral teachings. The clergy, in 
 return for the tithes and other payments they received, gave 
 title only to possessions for the disembodied spirit. They 
 took the temporal benefit and promised in return the spiritual 
 in the life to come. The rule of the kings and lords was 
 established by force and bolstered up by ifraud, that of the 
 clergy by fraud aided by force. 
 
 William the Conqueror came from his duchy of Normandy 
 with a claim of right to the crown of England. He took 
 
674 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 good care to fortify this claim with a strong and well equipped 
 army for those times, and with the moral (?) support of the 
 Pope. The battle of Hastings, in which Harold was killed, 
 left England without a recognized head or an organized force 
 to defend it. William possessed the essential qualities of a 
 ruler of men; he was an efficient organizer. He was also 
 politic in the methods he pursued to attach leading men to his 
 interests. He went to England burdened with no philanthropic 
 motives and hampered by no conscientious scruples. He took 
 the land to parcel it out among his followers or retain it as 
 his own. A few of the old Saxon lords, who rendered homage, 
 were allowed to retain their holdings, but most of the great 
 estates were transferred to his Norman followers. The great 
 church appointments, with a little more respect for form and 
 a little more ceremony, were then taken from their English 
 incumbents and also conferred on Normans. This was ren- 
 dered easy by his alliance with the Pope, who sanctioned the 
 changes. Toward those who quietly submitted he was some- 
 what gracious, but resistance of his authority was most merci- 
 lessly crushed. Nothing could exceed the heartless barbarity 
 with which he desolated York, Cheshire, Shropshire, Derby- 
 shire and Staffordshire, for rebellion against his authority. 
 Men, women and children were ruthlessly slaughtered, all 
 buildings burned and the country made a desolate wilderness, 
 swept clean of all means of subsistence to insure the destruc- 
 tion of its presumptuous people, whose lords had refused to 
 bear him allegiance. In William's eyes only the rich and 
 powerful were entitled to any consideration. Nobles who 
 though guilty of rebellion afterward submitted and did hom- 
 age, were pardoned, but their poor followers were slaughtered. 
 William proceeded at once to fortify his power by the con- 
 struction of strong castles at all important points, in which 
 he stationed his most trusty followers. The feudal system, 
 which had already made much progress under the Saxons, 
 was now given its more advanced form, as it existed in France. 
 The king assumed the title of lord paramount, to whom all 
 must do homage and swear ifealty for their lands. The whole 
 claim of authority was based on a theory of ownership of 
 
THE BRITISH EMPIRE 675 
 
 land. The great vassals held title to their estates under the 
 king and parcelled them among their chief retainers. The 
 men who actually tilled the soil became menials, whose rights 
 were regarded as of very slight concern. In the fourth year 
 of his reign he published a code of laws, which in main were 
 the same as those of his Saxon predecessors. He however, 
 took care to protect his Norman followers by requiring that 
 the hundred, in which a Frenchman was killed, must produce 
 his murderer within a week or pay a penalty of forty-six 
 marks. In 1085, when threatened with an invasion by the 
 Danes, William brought over mercenary troops from the 
 continent, levied a land tax and laid waste the coast where the 
 enemy would be likely to land, so as to deprive them of sub- 
 sistence when they came. William was superior to his Saxon 
 predecessors in that he took a more general view of his 
 kingdom's situation, but in its defense the preservation of his 
 own power and position was the main object. He did not 
 hesitate to sacrifice the people in advance of the time of need. 
 His capacity for gathering information by systematic methods 
 was most strikingly exhibited by the great survey of the king- 
 dom, compiled in Domesday book. This was no less than a 
 great census and assessment roll of the country. Commis- 
 sioners were sent into each shire, who made a list of all the 
 lands, with.the names of the owners in the time of Edward and 
 at that time, the character of the tenure by which they held, 
 whether by boc or otherwise, the conditions to which they 
 were subject, and the value in the time of Edward and at the 
 time of the survey. In order to ascertain these facts they were 
 directed to go into each hundred and take the evidence of 
 sheriffs, landowners, priests, bailiffs, and six selected villeins 
 from each township. They were required to ascertain the 
 extent of each holding, measured in the old way by hides, and 
 also by the standard of a fair year's work by an eight ox plow 
 team, rated at about one hundred and twenty acres, with de- 
 tails as to the population, whether free or slave, the character 
 of the soil, extent of meadows, woods, pastures, etc., the 
 buildings, mills and other improvements, with the numbers of 
 •cattle, pigs, horses, etc. The largest cities and some of the 
 
(f](i EVOLUTION OF GOVERNMENTS AND LAWS 
 
 northern counties were not included. This was a remarkable 
 example for that age of that fondness for figures and definite 
 information, which has since been so characteristic of the 
 British nation. It was William's method of taking an invoice 
 of the property he had acquired by the conquest. His next 
 important step was to impress the fact of his ownership on the 
 people by requiring all landowners, holding ajiy considerable 
 tracts, to assemble on the plains of Salisbury, pay him homage 
 and swear allegiance. In this he overlapped the continental 
 system of infeudation and required homage and fealty from 
 those holding mediately from his vassals, as well as directly 
 from himself. Thus the feudatories of the lords were re- 
 quired to do homage and swear fealty to the king, though also 
 bound to their immediate superiors. This was contrary to the 
 prevailing system both in England and on the continent, by 
 which the tenant was bound to the king only through his im- 
 mediate lord, whom he could not desert even at the command 
 of the king. By parcelling out the lands of the kingdom 
 among his bloody and remorseless followers in great tracts,. 
 William completed the establishment of that landed aristoc- 
 racy, which was the source of so much pride, arrogance, 
 selfishness, bloodshed and cruelty through succeeding cen- 
 turies. The theory was simple and easily taught to the igno- 
 rant multitude. The king or his vassal high or low owned 
 the soil, and whoever else dwelt on it must do so on such terms 
 as the owner imposed. The personal freedom of the poor 
 landless man was not denied, but in order to have an abiding 
 place he must have a lord and serve him. William loved to 
 hunt, and in order to provide a hunting ground and make 
 what was termed the New Forest, he drove the people off some 
 17,000 acres of tillable land and converted it into a wilderness 
 to breed game, which he protected from others by savage laws. 
 "Whoso slew hart or hind had to be blinded." This was but 
 another exhibition of his extreme selfishness and utter dis- 
 regard for the rights of the humble people. 
 
 The leading incidents of the feudal system were, on the 
 part of the lord an obligation, kept or not according to cir- 
 cumstances, to protect the tenant in his possessions; on the 
 
THE BRITISH EMPIRE (yj-j 
 
 part of the vassal to render military service and ifurnish one 
 mounted and equipped soldier for a given quantity of land, 
 bound to forty days' service in each year; to aid his lord by 
 a payment of money when his eldest son became a knight, or 
 his eldest daughter was married, or to pay his ransom in case 
 of his captivity; to give a relief on the transmission of an 
 estate from ancestor to heir, which at first was a sum fixed at 
 his pleasure by the lord on taking possession by the heir, but 
 later was fixed at one year's profits. The lord was the guardian 
 of the lands of the heirs of his vassals during their minority; 
 as such he took the products of them, and rendered no account 
 of what he received. When a tenant in chivalry, deemed the 
 most honorable tenure, came of age, to get possession of the 
 lands of his ancestor he must sue out livery of seizin and pay 
 a further half year's profits. Wardship also gave the lord 
 power to dispose in marriage of the ward, male or female, on 
 pain of heavy forfeiture for refusal. ' Forfeiture of estate for 
 treason or felony and escheats on failure of heirs in the desig- 
 nated line, afforded pretexts,' — often taken advantage of, — 
 for the lord to dispossess a tenant and take the lands to 
 himself. One of the innovations introduced by William was 
 the division of the ecclesiastical from the civil courts, and 
 another was the decision of causes by wager of battle. In the 
 exercise of their jurisdiction the bishops assumed the right to 
 determine all causes affecting their own interests and to decide 
 them in accordance with the Canon Law. Thus, in building 
 up their power, the clergy were allowed to enforce their will 
 through the forms of judicial proceedings. The High Court 
 of Justiciary, the original court of Kings Bench, was estab- 
 lished by William, and he also established a chancery and 
 treasury, the Chancellor keeping the king's seal, conducting 
 his correspondence and acting as his general secretary. 
 Though William courted and obtained the sanction of the 
 church for his deeds, he did not concede papal supremacy in 
 England, but retained authority over ecclesiastical affairs in 
 his dominions and laid down as rules, that no Pope should be 
 recognized without his leave, no papal letters should be de- 
 livered till shown to him, nothing should be done in Synod or 
 
678 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Council except by his permission, and no tenant in chief should 
 be excommunicated or censured, except by his orders. The 
 rapid progress made in castle building is shown by the fact 
 that forty-nine castles are named in Domesday. A conspicu- 
 ous one was the Tower of London. Many cathedrals were 
 also erected. William gave to England a system, destined to 
 endure in most of its chief points for many centuries. He 
 died in 1087 and was succeeded in Normandy by his eldest 
 son Duke Robert and on the throne of England by his second 
 son William Rufus, who ruled till 11 00, when he died from 
 an arrow shot received while hunting in the New Forest made 
 by his father. In his time there were many uprisings against 
 his authority and private wars among his great vassals. Duke 
 Robert joined the first crusade and mortgaged his duchy to 
 William for money to defray his expenses, thus for the time 
 uniting England and Normandy under one head. He was 
 succeeded by his younger brother Henry, who followed his 
 coronation by publishing a charter, in which he recited that he 
 had been crowned by the common council of the Barons of 
 the Realm. This was a marked departure in name from that 
 of an assembly of the freemen, though not essentially different 
 in composition from the witan of the later Saxons. He 
 promised to abstain from unjust exactions and liberated the 
 church, agreeing to neither sell nor farm out vacant benefices 
 nor to seize vacant sees, and to refrain from divers other ob- 
 noxious practices. Though this charter made no effectual 
 provision for its enforcement against the king, it is a notable 
 step in the direction of government in accordance with fixed 
 principle. A special copy of it, addressed to the sheriff, was 
 sent down to each county. The basic system, which denied 
 the multitude all right to the face of the earth, had been gotten 
 well under way by the Saxons and was fully established by 
 the two Williams. It was not devised to do justice among 
 men, but was expressly designed to enable the organized few 
 to rule the many and extort from them the fruits of their 
 toil without return. The charter of Henry makes no attack 
 on the principle, but promises slight relief from some of the 
 abuses which excited discontent among the barons and clergy. 
 
THE BRITISH EMPIRE 679 
 
 Henry was more politic and less bloody than his father or 
 brother, and under him there was some progress in the or- 
 ganization of the state, especially in the development of the 
 judicial and financial systems. From his time the king's 
 justices began to go down and sit in the county courts with 
 the sheriffs, and the King's Court {Curia Regis), took juris- 
 diction of causes relating to lands between tenants holding 
 directly under the king. From his reign dates the use of the 
 term exchequer to designate the royal treasury and accounts 
 were regularly kept, though in a most primitive way, with the 
 sheriffs whose duty it was to collect and semiannually return 
 the taxes from the counties. 
 
 The lack of moral foundation to support the feudal system 
 was well exhibited by the period of anarchy during which 
 King Stephen fought to maintain his authority. He was not 
 heir to the throne according to any accepted doctrine of in- 
 heritance, nor was he elected by any representative body. The 
 Londoners, a few nobles and an archbishop, with some other 
 churchmen, gave him their support, and he was crowned with 
 the usual rites. Matilda, the daughter of Henry, claimed the 
 crown, and the nobles supported either party, according to 
 their interests or inclinations. Feudal oaths were easily 
 broken. Pride, greed and mere love of strife caused the 
 barons to war with each other, with #he king or any other 
 opposing force that was at hand. Among the Barons no 
 calling was deemed honorable but war. All useful labor and 
 all iforms of true service for others were deemed contemptible, 
 and the business of killing human beings in fight, destroying 
 property and spreading desolation, was alone considered hon- 
 orable. The rapid construction of strong walled castles, from 
 which the lord and his murderous band sallied and into which 
 they retired, tended greatly to promote the personal warfare 
 of the age. The poor tillers of the soil, who dwelt without 
 castle walls, were all the time exposed to destruction at the 
 hands of the enemies of their lord, and were little better off 
 when left merely to his mercy. The disorders of the times 
 tended to the growth of the influence of the church, and 
 Stephen by appealing to the Pope weakened the authority of 
 
68o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the Crown. The clergy came to deny all jurisdiction over 
 themselves and their land by the civil pov^er and to insist on 
 their right to finally determine all matters affecting their 
 interests. Though many bishops and other high church dig- 
 nitaries maintained their power by armed forces and fought 
 at the head of their retainers like the temporal barons, they 
 were generally more inclined to use the peaceful weapons of 
 judicial and papal decrees, enforced through the superstitious 
 fears of the people. There was less danger and more certainty 
 of results when priests passed on the merits of the claims of 
 priests. 
 
 Stephen was followed by Henry II, whose right to the 
 throne was universally recognized. He was a prince of far 
 greater capacity and more inclined to gain his ends by pacific 
 means. So great had been the encroachment of the ecclesiasti- 
 cal on the temporal power, that the greatest task and most 
 prominent purpose of Henry's reign was to recover the power 
 and influence which the clergy had engrossed. He fully ai> 
 preciated the necessity of organization and of the support of 
 the leading spirits of his kingdom in his contest with the 
 church. He therefore called a great council of the nobility 
 and prelates at Clarendon to settle the boundaries between the 
 authority of the king and that of the church. This appears to 
 have been the first greSt parliament under the Normans. The 
 barons naturally sided with the king, and with their help he 
 overawed the bishops and enacted the Constitution of Claren- 
 don, which declared that all suits concerning advowsons and 
 presentations of churches should be determined in the civil 
 courts; that churches belonging to the king's fee should not 
 be granted in perpetuity without his consent; that clerks ac- 
 cused of crime should be tried in the civil courts; that the 
 laity should not be accused in spiritual courts except by re- 
 putable witnesses; that all appeals in spiritual causes should 
 be from the archdeacon to the bishop, from the bishop to the 
 primate and from him to the king, and should go no farther 
 without the king's consent ; that archbishops, bishops and other 
 dignitaries should be regarded as barons of the realm and en- 
 titled to the privileges and subject to the burdens incident to 
 
THE BRITISH EMPIRE 68i 
 
 that rank; that the clergy should no longer pretend to the 
 right of enforcing payment of debts contracted by oaths or 
 promise, but such suits should be left to the civil courts; and 
 that the sons of villeins should not be ordained as clerks with- 
 out the consent of their lord. These and other provisions 
 tended greatly to curb the overgrown pretensions of the church 
 in matters of purely temporal concern, but the provision last 
 noted clearly shows, that it was not for the purpose of se- 
 curing greater freedom for the lower ranks of society, but to 
 strengthen the positions of the king and barons. These arti- 
 cles, reduced to writing and sealed by barons and bishops, 
 are a most notable instance of an early attempt to set bounds 
 to the ruling power. Though leveled against the pretensions 
 of the clergy, it was an instance of opposing the kingly force 
 to the clerical. The Constitution of Clarendon dealt with 
 the opposing forces of temporal and spiritual power. By the 
 adoption of this constitution Henry did not by any means 
 settle the controversy, but his whole reign was a continued 
 struggle against the Papal power, of -which Thomas a Becket, 
 Archbishop of Canterbury, stood as a most renowned cham- 
 pion. To enforce his power Henry issued orders to all his 
 judicial ofhcers prohibiting all appeals to the archbishop or 
 pope, or the receipt of any mandate from them; declaring it 
 treason to bring from either of them an interdict into the king- 
 dom, under penalty, if a secular clergyman, of loss of eyes and 
 castration, if a regular of amputation of the feet, and if a 
 layman, of death. Henry found the struggle a difficult one, 
 and on several occasions was forced to humble himself and 
 make terms with his adversary, yet he persisted in his ad- 
 herence to the principles of this constitution. In his reign 
 there was a marked advance in the exercise of judicial power 
 in lieu of private warfare. He divided the kingdom into four 
 judicial divisions with justices in each, who held courts in each 
 of the counties. A strange phase of the criminal law of the 
 time was, that a clergyman, guilty even of murder, could be 
 punished by degradation only, if he were murdered the slayer 
 would be subject only to censure and excommunication, and 
 
682 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the crime might be atoned for by penances and submission. 
 The murderers of so distinguished a prelate as Becket, on 
 submission to the penances imposed by the Pope, were not 
 only left with their lives but also with their titles and estates. 
 Henry and his council promulgated a law, that the goods of 
 a vassal should not be seized for the debt of his lord unless 
 the vassal was surety for the debt, and that the rents due 
 from the vassal should be paid to the creditors of the lord in- 
 stead of to the lord himself. The enactment of such a law 
 indicates the prevalence of the condemned practice and a 
 growing sense of the rights of vassals. 
 
 Henry invaded Ireland and overran it with little opposition, 
 but the dominion he established was not enduring. He also 
 compelled the Scotch to do him homage. His rule was thus 
 extended over all the British Islands, as well as over Nor- 
 mandy, but it was merely the rule of a feudal monarch, de- 
 pendent on individual capacity for its maintenance and doomed 
 to fall whenever passed into weak hands. 
 
 The reign of Richard,* 1189 to 1199, exhibits in the strong- 
 est light the barbarity, the gross superstition and bigotry, of 
 the times. The crusade to free the Holy Land from the 
 dominion of the Infidels was a war waged by the fanatical 
 Christians of the west against the far more enlightened, cul- 
 tured and humane Mohammedans of the East. Richard taxed 
 his kingdom to the utmost and sold great estates in the most 
 reckless manner to raise money to defray the expenses of his 
 army to invade Palestine. It was the first distant expedition 
 undertaken by a British army and was productive of some 
 good in an educational way, though based on no moral pur- 
 pose. A superstitious veneration for a particular spot of 
 earth and a hatred ifor the followers of a different priesthood 
 furnished the pretext for it. Nothing could have been more 
 romantic or foolhardy than Richard's career in the East, nor 
 much more disastrous to his followers, most of whom per- 
 ished either on the march, in camp or on the battlefield. 
 Richard's detention in captivity by the German Emperor and 
 Duke of Austria, Christian princes, is but one of many ex- 
 hibitions of the prevailing lack of real Christian fellowship 
 
THE BRITISH EMPIRE 683 
 
 among the crusaders ; but his own act in causing the slaughter 
 of five thousand prisoners, taken at Acre, is a far more strik- 
 ing proof of the utter barbarity of the professed Christians. 
 While Richard was leading his vassals to destruction in the 
 East, his kingdom was exposed to all the disorders incident to 
 the feudal system when free from the restraint of a master like 
 Henry II. Normandy and England both suffered from the 
 jealousies, hatreds and ambitions of the Barons, and the in- 
 efficiency of the clerical regents, whom he left as guardians 
 of the realm. Prince John after putting an end to their rule 
 did no better. Richard lost his life by refusing to accept the 
 surrender of the garrison of the castle of Chalus near Limoges, 
 preferring to take it and hang its defenders for presuming to 
 resist him. He was struck in the shoulder by an arrow, caus- 
 ing a wound from which gangrene ensued and occasioned his 
 death. The peculiarities of his temper are well illustrated by 
 his treatment of the garrison, all of whom were hanged ex- 
 cept the archer who shot him, whom he pardoned; but this 
 did the archer no good for his followers flayed and hanged 
 him. 
 
 Though Arthur, Duke of Brittany and son of Geoffrey the 
 eldest brother of Richard, was in the regular line to inherit 
 the throne, John, the younger brother, was named his suc- 
 cessor by Richard in his will, and to make sure of his authority 
 murdered the young Arthur. Such exhibitions of selfishness, 
 heartless criminality, and utter disregard of the ties of blood, 
 have alas been all too common in princely families. The 
 struggle between the Pope and the King for temporal power 
 went on during John's reign as in that of his father, but with 
 far different results. John was neither politic nor capable of 
 gaining his ends by force. He was cruel, deceitful, fickle, a 
 tyrant by nature, without ability to attach any class of people 
 to his interests, except through payments or favors. He there- 
 fore had to struggle against his barons, and against the 
 church. At last he allied himself with the Pope and even 
 yielded so, far to papal pretensions as to agree to hold Eng- 
 land as the feudatory of the church of Rome and to pay a 
 tribute annually of 1,000 marks. His abject submission to 
 
684 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Rome, in such marked contrast with the stand taken by Henry, 
 was utterly distasteful to the barons, with whom he was per- 
 petually in conflict; nor was his conduct toward the clergy 
 such as to hold their good will, but by his oppression of all 
 classes of men and his gross immorality and cruelty he aroused 
 the hostility of the spiritual as well as the temporal lords. 
 The archbishop of Canterbury took the lead in organizing the 
 bishops and barons to curb him. At a meeting convened in 
 London they demanded of him a renewal of the charter of 
 Henry and the laws of Edward. He temporized and took 
 time for reply, during which he called in the aid of the Pope, 
 but in spite of all his efforts the coalition grew in strength, 
 and an assembly of 2,000 knights with their followers forced 
 him at Runnemede to sign the Great Charter, so much regarded 
 through later times. With characteristic perfidy on his part 
 and assumption on the part of the Pope, he procured a Bull 
 annulling the charter and prohibiting the barons from exact- 
 ing the observance of it. John thereupon repudiated it and, 
 having gathered a force of foreign mercenaries, he waged 
 war on the disbanded and disorganized barons, laid waste 
 their estates and butchered their poor vassals. In the ninth 
 year of his reign John granted the city of London an im- 
 portant charter, giving it the right of electing annually a mayor 
 and common councilmen and to elect and remove its sheriff at 
 pleasure. Thus the disquiet reign of a vicious ruler con- 
 tributed materially to the foundation of a better ordered so- 
 ciety in later times, though the fruit was exceedingly slow in 
 ripening. 
 
 The far-reaching value of the Great Charter does not lie in 
 any purpose to relieve the lower orders from the tyranny of 
 the barons and priests, nor of the king himself; but in the 
 fact that a written chart was made, which set bounds to the 
 authority of the king and his officers, and also to that of the 
 barons, and marked out a method of enforcement against the 
 king. The feudal system with its unjust basis and its vicious 
 tendencies was left undisturbed, but abuses beyond certain 
 expressed limits were prohibited. A full copy of this charter 
 is given in the Appendix. 
 
THE BRITISH EMPIRE 685 
 
 The importance of this great charter lies not so much in the 
 intrinsic merits of its provisions, as in the pertinacity with 
 which succeeding generations have insisted on the observance 
 of such as tended to the protection of the subjects against the 
 unwarranted demands and acts of the king and nobles. The 
 Charter accepted an organization of society which denied 
 justice and invited private wars and turmoil. A favored few 
 were in possession of most of the lands of the kingdom. They 
 and their ancestors for generations had been accustomed to 
 extort from their tenants a large share of the products of the 
 soil, for which nothing was given in return. This system had 
 continued so long that it was accepted without question in its 
 main essentials. The transmission of the privileges and 
 powers of the great landlords from father to son by inheri- 
 tance was accepted as an established law, and the great multi- 
 tude held in servitude to the barons accepted their lot as that 
 to which they were born, with no suspicion that the general 
 system of land tenures was responsible for the grossest in- 
 justice to them. The lord was born to pride, arrogance, dis- 
 dain of all useful employments, love of war, and in peace of 
 the savage sport of the hunter, drunkenness and debauchery. 
 The poor villein was born to a narrow life of ignorance and 
 servitude, from which only one of remarkable spirit and 
 capacity could raise himself. The Great Charter, in framing 
 which the hands of the clergy evidently performed a great 
 part, accepts all those forms of injustice, which were fortified 
 by long established, settled rules, with which people were 
 familiar and in which they acquiesced, and made provisions 
 against the exercise of exceptional and arbitrary powers at 
 the caprice of the king or of the barons. It did not seek to 
 better the condition of slaves or villeins in any marked degree. 
 It is notable that thus early a provision should be made in 
 favor of the freedom of trade, a policy which in modern times 
 has contributed so bountifully to the prosperity of the people. 
 The mere circumstance of granting a charter in that age was 
 not at all remarkable: Prior kings of England had granted, 
 them, as did also John's successors. But such charters were 
 not peculiar to England. The German emperors granted them 
 
686 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 in great numbers to their dependents and often violated them 
 without compunction. This charter accorded with the spirit 
 of the times in main, yet breathes a spirit of justice in ad- 
 vance of them. Subsequent generations caught the spirit and 
 fought for an enlarged application of it. The great import- 
 ance of the Charter lies in the fact that it became the point 
 around which the forces contending for human rights rallied, 
 and the seed from which popular rights in England have been 
 propagated. 
 
 Henry III under the guardianship of the able Earl of Pem- 
 broke granted a new charter in 121 6 containing forty-two 
 sections, mostly copied from that of John. In 121 7 he fol- 
 lowed it with another in forty-seven sections which he re- 
 newed in substance in 1224. The main difference between the 
 charters of Henry and that of John is in the omission of the 
 provision requiring aids and scutages to be granted by the 
 barons. The provisions of the latter charters are not of so 
 much importance, for the reason that in after times the Great 
 Charter of John was appealed to as the authoritative expres- 
 sion of the limitations of the king's power. At the time of 
 granting his second charter Henry also granted another, called 
 the Forest Charter, regulating the government of the forests 
 and providing for the restoration to their owners of lands un- 
 justly seized by his father, uncle Richard and grandfather, to 
 make iforests. This charter, though deemed of much import- 
 ance at the time, dealt mainly with conditions peculiar to the 
 time and has left little if any impression on modern institu- 
 tions. Henry began his reign by swearing fealty to the Pope 
 as his father had done, and much of the trouble of his reign 
 was due to the gross venality of the Pope and clergy. The 
 thirst for power, which had been so strong, had changed into 
 a desire for wealth and luxury, and the demands for more 
 money grew and could never be fully satisfied. This reign is 
 especially notable for its parliament. At first, as in preceding 
 reigns, only such of the barons and prelates as the King saw 
 •fit to summon were consulted, but in Henry's time these ses- 
 sions were more frequent and more numerously attended. In 
 1258 Henry summoned a Parliament for the purpose of rais- 
 
THE BRITISH EMPIRE 687 
 
 ing funds for his project of conquering Sicily for his second 
 son Edmond. The barons came in arms, backed by their vas- 
 sals, and proceeded to name twenty-four barons with authority 
 to reform the state. The king was forced to submit to their 
 authority. At the head of the council thus formed was the 
 Earl of Leicester, an able man. This council at once took 
 charge of the administration of the government. They re- 
 moved the chief justice, chancellor and treasurer, and ap- 
 pointed others of their own selection. To -further extend 
 their power they caused the barons to appoint, as a commit- 
 tee of the Parliament, twelve persons, to possess the authority 
 of the whole Parliament when not in session. In this manner 
 the power of the king was reduced to a mere shadow, and the 
 great barons assumed substantially the whole political power 
 of the state. But the spirit of the times and the lack of any 
 moral bond holding the barons together or checking their 
 excesses soon enabled the King to recover his ground. The 
 Pope, in accordance with the established policy at Rome, ab- 
 solved Henry from the oath he had been forced to take to 
 support the new constitution, and the King thereupon issued 
 a proclamation resuming authority and followed it with ap- 
 pointments of new officials in all positions of importance. He 
 summoned a parliament which ratified his acts, but the strug- 
 gle did not end here. Leicester and his party rose again in 
 opposition and, to avoid bloodshed, the singular expedient was 
 adopted of submitting the matters in dispute between the king 
 and these barons to the arbitration of Louis, King of France, 
 distinguished for his virtue as well as piety. King Louis quite 
 naturally decided in favor of King Henry and, with the same 
 want of faith that the King had exhibited, the barons refused 
 to abide by the award. Civil war ensued, in which the barons 
 were successful and the King fell into their power. Leicester 
 was again at the head of the government. In 1265 he con- 
 vened a new parliament, to which he summoned, not only 
 such of the barons and ecclesiastics as were of his party and 
 two knights from each shire, but also deputies from the bor- 
 oughs. This was the birth of the House of Commons, being 
 the first recorded instance of any representation from the bor- 
 
688 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 oughs. The number of the barons in the forty-seventh year 
 of Henry's reign is given roundly at one hundred and fifty 
 temporal and fifty spiritual. The long reign of Henry, from 
 12 1 6 to 1272, v^as a period of great turbulence, exhibiting in 
 marked degree the evils of feudalism. Yet this period of 
 turbulence marks the origin of that system v^hich has ruled 
 England through so many succeeding centuries, and under 
 which its power and prosperity have expanded so greatly. 
 This reign is notable as being that from which the preserved 
 statutory law, now so voluminous, starts. The statute of 
 Merton, ordained in 1235 by the king with the approbation of 
 the lords spiritual and temporal, treats of remedies for widows 
 deprived of their dower, of disseisins, tenures of woods, 
 wastes and pastures, usury, wardships and marriages, Hmita- 
 tions of writs, and allows attorneys to appear in suits. In 
 1266 a statute was made regulating the price of bread and ale 
 according to the price of corn. Several statutes were also 
 enacted regulating process and procedure in the courts, one 
 of which, relating to leap year, is in form an order addressed 
 by the King to "his Justices of the Bench." The statute of 
 Marlbridge 1267 relates mostly to subjects connected with 
 feudal tenure and to writs for relief in the courts, the names 
 of many of which are familiar to lawyers versed in the com- 
 mon law. The summary method of collecting the landlo^'s 
 rent by distress without legal process is treated of. Dower, 
 darrein presentment, quare impedit, mort d'ancestor, replevin, 
 waste, voucher to warranty, entry sur disseisin in the post, and 
 other kindred writs and rights are regulated; showing that 
 even in those turbulent times people looked to courts and law 
 for escape from robbery and violence. These statutes were 
 all in Latin, while some of those of the succeeding reign of 
 Edward I were in Norman French and others in Latin. 
 
 At the time of the death of Henry Prince Edward was 
 crusading in the Holy Land. On his return he dallied nearly 
 a year in France. Being challenged to a tournament at 
 Chalons in which he was successful, he was forced to follow 
 the mock battle with a real one, in which many knights were 
 slain. At Paris, Edward did homage to the French King for 
 
THE BRITISH EMPIRE 689 
 
 the lands he held in France and then returned to England to 
 be crowned. To repress the robberies and murders which 
 were so common throughout the country, he appointed a com- 
 mission empowered to deal summarily with such offenders, 
 who zealously condemned suspects and confiscated their es- 
 tates, thereby greatly adding to the King's revenues. Some 
 persons were guilty of debasing the coin of the realm and, 
 as Jews were smart and hated by the multitude, he caused two 
 hundred and eighty of them to be hanged in London at one 
 time and many others elsewhere in the kingdom. This also 
 added to the king's revenues, and probably was merely a 
 false pretext devised as a justification of the murder and 
 robbery of the more peaceful and thrifty Jews. This cruel act 
 he followed with the confiscation of the estates of all Jews, 
 except enough to pay their transportation out of the kingdom, 
 and banishment of all of them to the number of 15,000. Ed- 
 ward was thrifty. He obtained from his parliament a grant 
 of one-fifteenth of all chattels, from the Pope one-tenth of all 
 ecclesiastical revenues for three years, and from the merchants 
 half a mark on each sack of wool exported and a mark on each 
 three hundred skins. He made close inquiry into the titles of 
 the nobility to their estates and caused the seizure of all for 
 which he could find a pretext. The purpose of the law was to 
 support the power and pretensions of the king, the nobility and 
 the clergy. The judges added a further purpose, to enrich 
 themselves, and their corruption was most gross. Edward 
 brought them to trial before parliament and fined them so 
 heavily as to bring him a large sum of money. Thus he suc- 
 ceeded to their ill-gotten wealth. The decay of the feudal 
 system of warfare and the resort to paid troops made it 
 necessary for Edward in carrying on his wars with the Welsh, 
 the Scotch and the French to call on his subjects for frequent 
 contributions. To obtain these he found it necessary to call 
 the parliament together to grant him funds. Though the 
 Earl of Leicester had summoned representatives of the bor- 
 oughs in the time of Henry HI the practice had not been con- 
 tinued, but in the twenty-third year of Edward's reign he 
 summoned representatives of all the boroughs, and this is 
 
690 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 regarded as the real date of the first House of Commons. In 
 summoning the knights and barons the practice grew of call- 
 ing such as the king chose and of having the knights and 
 barons of less wealth choose representatives from each county 
 to attend, whose expenses were borne by the others. Though 
 these representatives came from the more humble orders of 
 the state, they there, as in so many other countries, at first 
 gave their support to the king in order to curb the power and 
 pretensions of the great barons. At first the commons did 
 not assume legislative functions, but merely assented to such 
 demands for money as the king made and they felt unable to 
 resist. They might, however, petition for a redress of griev- 
 ances, and the king might grant it if he thought best. In 
 Edward's reign the barons many times had recourse to the 
 Great Charter and required the king to swear to observe it. 
 He often violated it and repeated many times his promise to 
 be governed by it. All classes of subjects found some pro- 
 visions in it tending to protect them and insisted on the ob- 
 servance of them. The power of the clergy began to decline, 
 and the demands of the king for money steadily increased. 
 The holdings and revenues of the church were so great, that 
 it was no longer the policy of the Crown to exempt them from 
 taxation, and Edward insisted on large contributions out of 
 ecclesiastical revenues. The clergy at first resisted, but the 
 King placed them outside the protection of the law by depriv- 
 ing them of any remedy in the courts for wrongs done them. 
 As plenty of his subjects were ready to rob them, the clergy 
 soon found it to their interest to yield. He also placed a 
 check on future acquisitions of land by the clergy by a statute 
 of mortmain. In his reign there was much legislation, and 
 the courts grew in importance. He established the office of 
 justice of the peace, abolished the office of chief justiciary and 
 divided the court of the exchequer into four with coordinate 
 jurisdiction. The perpetuation of the power of the nobility 
 was facilitated by the statute allowing the entailment of es- 
 tates, so that the owner could not alienate lands away from 
 the heir. Edward tried to break away from the annual pay- 
 ment of i,ooo marks as tribute to the Pope, but was unable to 
 
THE BRITISH EMPIRE 691 
 
 do SO and preserve the support of the head of the church, 
 which he often found needful. England's King therefore 
 continued to be a vassal of the Pope, but the clergy felt his 
 heavy hand and were no longer able to oppose his will. Com- 
 merce grew in volume, and in 1296 the society called ''Mer- 
 chant adventurers" was formed for the improvement of 
 woolen manufactures and the sale of cloth abroad. A charter 
 was also granted for the protection of foreign merchants, but 
 on hard terms. In his wars Edward exhibited great vigor and 
 succeeded in the permanent subjugation of Wales and the 
 temporary conquest of Scotland. The reign of Edward I is 
 chiefly notable for the great development of the system of 
 courts and rules for the administration of the law. Nearly 
 every topic affecting proceedings in court and feudal tenure 
 of land received attention. Sheriffs were prohibited from 
 holding prisoners without an indictment by a grand jury of 
 twelve or more. The qualifications of jurors for the trial 
 of causes were fixed by law, and the number to be summoned 
 Hmited to twenty-four. Terms of court were regulated, 
 forms of writs were authorized to be issued out of chancery 
 and all writs were required to be under the great seal. The 
 statute of ''quia emptores" provided that vendees of land 
 should hold under the lord paramount as the vendor had held. 
 The period of savage punishment of persons charged with 
 crime had not yet arrived; aside from an act making rape 
 punishable with death, there were no savage penal statutes. 
 Most of the acts related to land tenure or to the recovery of 
 it or of rents and profits, but there were also statutes for the 
 collection of debts and of damages for wrongs suffered. Most 
 of the laws are models of clearness and brevity, in strong 
 contrast with the verbosity of later periods. Whatever his 
 faults or misdeeds, Edward is well entitled to the name of the 
 great lawgiver, for from his reign that system of administer- 
 ing the law, so long boasted of by Englishmen, took definite 
 form. While courts, juries, writs, sheriffs, bailiffs, etc. ex- 
 isted and had been used long prior to his time, he more than 
 any other king, gave form and completeness to the system, 
 and, though there was little justice, there was much of statu- 
 
692 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 tory law and of courts and officials of the law at the conclusion 
 of his reign in 1307. 
 
 Edward II was a weak prince. The system of parliament- 
 ary rule grew in strength during his reign and that peculiarly 
 English characteristic of demanding established rules in gov- 
 ernment found expression in acts of parliament, many of 
 which were forced on the king against his will. He was com- 
 pelled to give up his favorite, Gavaston, a Gascon, who was 
 murdered by jealous earls, and the king was induced to pardon 
 the murderers. Scotland under the lead of Robert Bruce 
 established its independence at the decisive battle of Bannock- 
 burn in 1 3 14. The spirit of turbulence still prevailed, and in 
 the treatment of captured rivals there was an apparent lower- 
 ing of the standard of morality, for many instances occurred 
 of the slaughter of prisoners of distinction. On the other 
 hand we do not read of quite so much murdering of the poor 
 and defenseless. Though laws were passed, they were obeyed 
 only by those who were powerless to resist. The whole reign 
 was one of turmoil and disorder, yet the superstitious rever- 
 ence for the clergy declined, and men called, though in vain, 
 for a government by fixed rules. Edward II, a man far more 
 humane and forgiving than most of his barons, fell a victim 
 to the cruelty and perfidy which prevailed. Having been taken 
 prisoner by rebellious barons, he was murdered by thrusting 
 a red hot iron into his bowels. In this and numerous other 
 reigns prior and subsequent the barons, who enjoyed so many 
 great privileges at the expense of the multitude, not only per- 
 formed no service useful or beneficial to others, but were 
 murderers, robbers and traitors by nature and by education. 
 Such is the so-called gentle blood of the noble houses of that 
 time. With such a want of morality among the rich and 
 powerful it is no wonder that there was crime and brutality 
 among the so-called lower orders. Security for life or prop- 
 erty could not be found, and as a consequence there was gen- 
 eral poverty, distress and degradation. 
 
 During the fifty years' reign of Edward III the resources 
 of the kingdom were exhausted in great wars to maintain the 
 extravagant and groundless claims of the king to dominion 
 
THE BRITISH EMPIRE 693 
 
 over Scotland and France. The country was repeatedly bur- 
 dened with ruinous taxation and drained of its able-bodied 
 men to carry on the struggle. The war with Scotland served 
 only to strengthen the prejudice of the Scotch against British 
 rule, and though Edward was able to lead great armies into 
 France and lay waste great districts, though he gained the 
 renowned battles of Crecy and Poitiers, though the Black 
 Prince became a warrior renowned not only for his courage 
 and capacity but also for his humanity, the net result of the 
 long struggle was merely a little shifting of boundaries, des- 
 tined soon to be again changed, and the bloodshed, vice and 
 misery of a great war. The nobility, still true to the in- 
 stincts which had ruled them in the acquisition of their un- 
 merited possessions, were constant law breakers, robbers and 
 protectors of robbers. The chief seats of vice and crime were 
 in the great castles, where the barons, backed by their armed 
 retainers, defied all rules conflicting with their purposes. Yet 
 in spite of all these evils some progress was made toward the 
 evolution of a more orderly state of society. Foreign wars 
 begot a national spirit and the organization, equipment and 
 maintenance of the great armies, which invaded France and 
 Scotland, required a more systematic management of state 
 affairs. In order to raise money Edward found it necessary 
 to frequently assemble Parliament and obtain its assent to his 
 measures. He repeatedly recognized and promised to main- 
 tain the great charter, though he still more frequently violated 
 it. Nevertheless Parliament came to be regarded more and 
 more as a great representative of the nation, and the house 
 of commons, superior in morals though inferior in wealth, 
 steadily gained in influence. In the later years of Edward's 
 reign Parliament assumed the right to impeach the king's 
 ministers, and the idea of the accountability of the ministers 
 began to grow from the jealousy of the barons of the king's 
 favorites, on whom he conferred authority. Though the king 
 called on Parliament for grants of taxes, he did not abstain 
 from arbitrarily imposing them on his own authority. He 
 still asserted the right to promulgate laws, formulated by 
 himself and his privy council, without consulting the Parlia- 
 
694 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ment. In his reign the papal power was still further re- 
 duced, and a statute was enacted making it a penal offense to 
 procure a presentation to a benefice from Rome, and by an- 
 other statute persons who appealed causes to the Pope were 
 outlawed. The influence of the clergy over the laity had de- 
 clined, and the old weapons of excommunication and interdict 
 had lost their edges. The war with France stimulated the 
 English national spirit, and the use of the French language in 
 public acts and documents was abolished. Though Edward, 
 being a man of great energy and ability, ruled despotically, the 
 three forces, of king, nobility and commons, began to assume 
 the respective functions which so long tended to hold each 
 other in check. The king and nobles stood for war, robbery 
 and unmerited privilege, the commons for some small measure 
 of justice. In a depraved and disorganized state of society, 
 physical power and military combination without regard to 
 moral right lead in the formation of states. It is only by 
 slow degrees and countless martyrdoms that the moral force, 
 which protects the helpless and innocent, gains mastery and 
 makes possible a truly great state. The moral purposes of the 
 commons were superior to those of king and barons and 
 therefore contained the stronger vital principle. Their in- 
 fluence has grown and must inevitably continue to grow, as 
 the general moral tone of the people advances. It was during 
 the French wars of this reign that artillery first came into use, 
 and the result of the great battle of Crecy is said to have been 
 determined by the English guns. 
 
 The reign of Richard II shows an increasing tendency to 
 resort to judicial decisions of controversies, without any well 
 defined disposition on any part to do justice. Parliament con- 
 demned those at the time out of favor without a hearing, and 
 caused many summary executions and forfeitures. Laws 
 were passed but not observed. Lawyers multiplied and busi- 
 ness in the courts increased, but decisions were not given with 
 much regard either for law or justice. Though the feudal 
 system was decaying, no firm organization had taken its place. 
 In this reign we find the first reported instance of an uprising 
 of the grievously oppressed common people. John Ball, a 
 
THE BRITISH EMPIRE . 695 
 
 preacher, went about the country preaching the doctrine of the 
 common origin and brotherhood of man and their equal rights 
 to the bounties of nature. The imposition of a capitation tax 
 of three groats per head on all persons above fifteen years of 
 age was regarded by the poor as a most grievous burden. The 
 tax-gatherers proceeded in its collection with usual harshness 
 and indecency, and for an insult to his daughter a blacksmith 
 knocked out the brains of one of them with his hammer. By- 
 standers applauded and the populace came to his defense. 
 Sedition spread like wildfire; there was a general uprising 
 against the dissolute and tyrannical nobility, and much vio- 
 lence was done them. A vast multitude assembled on Black- 
 heath under the leadership of Wat Tyler and Jack Straw, 
 some of whom insisted on kissing the King's mother as she 
 passed through their midst, though without further insult or 
 injury. They demanded an interview with the King, but he, 
 being afraid to trust himself in their hands, went back to the 
 tower for safety. They broke into London, burned the palace 
 of the Duke of Lancaster and cut off the heads of such of the 
 gentry as fell into their power. The King finally asked for 
 their demands, and in response they asked a general pardon, 
 the abolition of slavery, freedom of commerce in market towns 
 without toll or imposts, and a fixed rent on lands instead of 
 villeinage service, all certainly reasonable and less rather than 
 more than their natural rights. The King granted the de- 
 mands and made a charter to that effect, whereupon the 
 multitude dispersed. With that want of good faith so char- 
 acteristic of the ruling class through all those disorderly times 
 the King, having gathered an army strong enough to enforce 
 his will, convened a parliament, which revoked the charters 
 and pardons and again reduced the people to the same slavery 
 as before. Many were arrested and executed without trial. 
 Want of an organization through which all might continue 
 to act in concert for their own protection after their separa- 
 tion, left the multitude at the mercy of the King and their 
 lords backed by their mercenary followers. Richard himself 
 afterward fell a victim to the faithlessness of the barons, who 
 combined for his overthrow under the leadership of Henry, 
 
696 EVOLUIION OF GOVERNMENTS AND LAWS 
 
 Duke of Lancaster. Having secured custody of the King by 
 treachery, Lancaster issued writs in the King's name con- 
 vening a parhament, taking care to fill it with those only who 
 were devoted to his interests. The King was impeached and 
 condemned to be deposed, without any real hearing, by a vote 
 of both houses. Thereupon Lancaster stood forth and made 
 a declaration recorded as follows: 
 
 "In the name of Father, Son and Holy Ghost I Henry of 
 Lancaster challenge this rewme of Inglande, and the crown, 
 with all the membres and the appurtenances; als that I am 
 descendit by right line of the blode, f owing fro the gude king 
 Henry therde, and throge that right that God of his grace 
 hath sent me, with help of kyn, and of my frendes to recover 
 it; the which rewme was in point to be on-done by defaut of 
 governance, and ondoying of the gude lawes." In this form 
 of jargon he assumed the kingly office. Richard, being a 
 prisoner in his power, soon came to his death, whether from 
 violence or starvation remains an unsettled point. England 
 had now fairly entered on that period of its history, when the 
 villainous deeds of kings and barons were largely perpetrated 
 with the aid of judicial forms, supplemented with cowardly 
 murders of those whom it was deemed dangerous to execute 
 publicly. Substantially all these villainies stand charged to 
 those of so-called gentle, noble blood. 
 
 The manners of the times of Richard are indicated to some 
 extent by the make up of his household, which consisted of 
 10,000 persons, requiring three hundred people in the kitchen. 
 All this multitude was fed from the king's tables at the 
 expense of the state. The reign of Henry IV is not noted for 
 marked constitutional changes. The clergy had lost their 
 mastery over king and nobles and now sought to perpetuate 
 their influence over the multitude by cruelty. In 1401 Wil- 
 liam Santre, having been condemned as a heretic by the clergy 
 at Canterbury and the sentence approved by the House of 
 Peers, was burned at the stake under a writ issued by the 
 King. The King, having no well recognized title to the throne, 
 sought by such means to draw the clergy to his support. The 
 clergy before his reign had been exempt from capital punish- 
 
THE BRITISH EMPIRE 697 
 
 ment, but in 1405 Henry caused the archbishop of York to be 
 summarily condemned for treason by a judge specially ap- 
 pointed for that purpose, who without indictment or trial pro- 
 nounced sentence of death on him, which was promptly exe- 
 cuted. The weakness of the King's title caused him early in 
 his reign to court the favor of the commons. In the first 
 year a law was passed at their instance that no judge, arraigned 
 for giving an unjust decision, should plead in defense the 
 orders of the king. In the second year they insisted on the 
 practice of not granting the king any supply until they re- 
 ceived an answer to their petition, thus in effect imposing a 
 condition precedent to their grant. In the sixth year they 
 appointed treasurers of their own selection to receive the pub- 
 lic moneys, see that they were disbursed for the intended ob- 
 ject and render an account to the house. In the eighth year 
 they established various regulations, which they required the 
 members of the king's council and all the judges to swear to 
 observe. In the later years of his reign Henry, having estab- 
 lished his position, again asserted his prerogatives, yet on the 
 whole there was a marked extension of the power and influ- 
 ence of the commons. The savagery of the times is well in- 
 dicated by the passage of a law making it a felony to cut out 
 any person's tongue or put out his eyes, barbarities then perpe- 
 trated so frequently as to call for repressive legislation. 
 . Henry V, who during the life of his father had led a wild 
 and dissolute life, exhibited some rare qualities on coming to 
 the throne, chief of which was a regard for law and respect 
 for those who, acting in subordinate capacities, enforced it. 
 The chief Justice, Gascoigne, had sent Henry to jail for in- 
 solent conduct in his court, certainly a remarkable exhibition 
 of judicial courage and authority for those times. Henry on 
 coming to power not only exhibited no ill-will on account of 
 it but continued him in office, as well as the other counselors 
 of his father who had frowned on his disorderly conduct. To 
 insure his popularity at home he adopted that expedient so 
 often employed by kings, a foreign war with France, on the 
 pretext of right to sovereignty there. This war brought him 
 great glory at the battle of Agincourt but without profit to 
 
698. EVOLUTION OF GOVERNMENTS AND LAWS 
 
 England. On his death the succession passed to his infant 
 son, during whose minority the "protector" named by Parha- 
 ment continued the war with France with great success, until 
 the appearance of Joan of Arc at the head of the French army 
 turned the tide of battle and caused the English to lose all 
 the territory which they had spent so much blood to acquire. 
 When she finally fell into their hands, fighting in defense of 
 the town of Campeigne, she was accused of witchcraft, con- 
 demned by an ecclesiastical court and burned at the stake. 
 Though this appears an exceptionally atrocious act, it ac- 
 corded fairly with the cruel and treacherous spirit which then 
 prevailed among the leading characters. The assassination of 
 prisoners, either with or without the pretense of a trial, was 
 of frequent occurrence. The Duchess of Gloster was accused 
 of witchcraft in 1447, ^^^' while she escaped with a sentence 
 of imprisonment only, her associates, who were jointly 
 charged with the same offense, were condemned and exe- 
 cuted. The title of the kings of the House of Lancaster to 
 the throne, coming through a junior son, had been regarded 
 as questionable, and the Henry's IV, V and VI courted the 
 support of parliament. In the reign of Henry VI, a weak, 
 almost an imbecile prince, the Duke of York began to assert 
 his title to the crown, and at last the flames of that barbarous 
 struggle, termed the war of the roses, between the adherents 
 of the Houses of York and Lancaster broke out. The most- 
 important act of parliament in his time was one restricting the 
 suffrage for members of parliament to persons possessing 
 lands yielding forty shillings per year, free of all burdens and 
 within the county. It seems that all freeholders had exercised 
 the right before that time. This reign is also noted for the 
 construction of the first national debt by authority of 
 Parliament. 
 
 During the early period of Norman rule the barons, though 
 they slaughtered the poor and defenseless on occasion most 
 ruthlessly, were yet generally considerate in their treatment 
 of men of their own class, who fell into their power. The 
 spirit of caste prevailed, and the lives of prisoners of rank' 
 were generally safe in the hands of their enemies. The prin- 
 
THE BRITISH EMPIRE 699 
 
 ciples of the feudal system were such, that men of rank 
 fought each other in the open and for the glory of the com- 
 bat, but despised all secret assassination and treachery. By 
 the time of Edward IV a great change had taken place. The 
 barons, whose ancestors for generations had been accustomed 
 to oppress the common people on their estates to the last point 
 of endurance, could take nothing more from them than they 
 were accustomed to receive. The only chance to augment 
 their possessions and increase their importance was to deprive 
 some rival of his property. It was found that to do this 
 effectually, it was usually necessary to deprive him of his life 
 also. A race of men accustomed to take the fruits of the toil 
 of others without return and to despise all useful employ- 
 ments, naturally had no moral code. The frightful barbarity 
 with which the leading nobles of that period murdered each 
 other, renders the history of the time a dreary and disgusting 
 record, yet the fact is usually overlooked that in the main it 
 was a process by which society was relieved of a most cruel 
 and vicious element. Instead of continuing to join their 
 forces to keep the multitude in subjection, they fought each 
 other, and as the varying fortunes of war and intrigue placed 
 one murderous baron in the hands of an enemy, he was mur- 
 dered, usually to be avenged later by the slaughter of one or 
 more of the same class, who had caused the deed to be done. 
 The war between the branches of the royal family known as 
 the Houses of York and Lancaster shows the crudity and 
 weakness of a system of government based merely on a theory 
 of the inheritance of power. All systems of this kind have 
 their root, not in any desire to promote the public welfare, 
 but in the desire of rulers to transmit their power to their own 
 posterity. They are established by educating the multitude to 
 believe that there is such a thing as royal blood, differing in 
 quality from that of common mortals, and that regal power 
 should be transmitted from the reigning monarch to one of 
 his blood according to a fixed rule. The supposed convenience 
 of this mode of designating a king has led to its acceptance by 
 a large part of the people of the earth in all ages. Though the 
 history of many nations is filled with instances of infant 
 
700 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 rulers, utterly incapable of governing the state, of imbeciles 
 on the throne, of idle, dissolute, depraved descendants of great 
 kings, of cruel monsters in human similitude who have 
 scourged the earth, and of the overthrow of weak dynasties 
 by usurpers mounting the throne, usually after wading 
 through blood and smoking ruins ; so persistent is the tendency 
 to adhere to this system, that it still prevails in most countries 
 of Europe and Asia. Though Henry IV might trace one line 
 of ancestors back through John of Gaunt, Duke of Lancaster, 
 to Edward III, the title to the throne by the rule of inheri- 
 tance was undeniably in Richard II at the death of his father. 
 Richard was then a boy only twelve years of age, but lack of 
 years was not his only deficiency in qualification for the ad- 
 ministration of the government. He was wanting in force 
 and vigor to rule so turbulent a nation, and Henry seized the 
 throne because he was strong enough to do so. For three 
 generations the succession continued in the House of Lan- 
 caster, until the young Edward IV of the York line came to 
 the throne sword in hand. At the battle of Towton Edward 
 followed victory with an order to give no quarter and caused 
 the summary execution of the Earl of Devonshire, who fell 
 into his hands as a prisoner. When Parliament assembled Ed- 
 ward's title to the throne was affirmed. All grants made by 
 the kings of the Lancaster line were annulled and all attainders 
 were revoked. On the other hand they passed an attainder 
 of Henry VI, his Queen Margaret, their infant son Edward 
 and a long list of nobles who adhered to their party, and de- 
 clared all their estates forfeited to the crown. The form of 
 a parliamentary decision was used, but the spirit of enmity 
 and covetousness, not of justice, dictated the judgment. A 
 court martial condemned the Earl of Oxford and his son. Sir 
 William Tyrrel, Sir Thomas Tudenham and John Mont- 
 gomery, and caused their execution and forfeiture of their 
 estates. In the north when the Duke of Somerset and Lords 
 Roos and Hungerford fell into the hands of Edward's fol- 
 lowers at Hexham they were immediately beheaded, and in 
 like manner Sir Humphrey Nevil and others were executed at 
 Newcastle. The scaffold and the axe of the headsman com- 
 
THE BRITISH EMPIRE 701 
 
 pleted the work of destruction left unfinished on the battlefield. 
 A rebellion having broken out in Lincolnshire, Lord Welles, 
 who took sanctuary fearing he would be charged with treason, 
 having been promised safety left his retreat and was seized 
 and beheaded along with Sir Thomas Dymoc by Edward's 
 orders. The leaders of the rebels, being soon taken prisoners, 
 were similarly executed. Edward, when not warring with his 
 subjects to maintain his authority, gave himself up to licen- 
 tiousness and debauchery. In 1470 the Earl of Warwick 
 drove Edward from the kingdom and taking Henry from the 
 tower of London, in which he had been confined and contrary 
 to the general custom of Edward allowed to live, proclaimed 
 him King. A Parliament summoned by Warwick reversed all 
 the acts of Edward's Parliament. Executions did not follow 
 this change in such numbers. The victim of distinction men- 
 tioned is the Earl of Worcester. The Yorkists seem to have 
 been more fortunate in getting away. Within six months 
 Edward returned and recovered his kingdom and Henry again 
 became his prisoner. Warwick was slain in battle, and his 
 followers were given no quarter but slaughtered in great num- 
 bers. After the forces of Queen Margaret were defeated at 
 Tewkesbury with much slaughter, the Duke of Somerset and 
 many other men of distinction were dragged from the church 
 in which they had taken sanctuary and beheaded. Queen 
 Margaret and her son Edward, heir to the House of Lancaster, 
 were taken prisoners, and being brought before the King, 
 young Edward was stabbed to death by the Dukes of Clarence, 
 Gloster and others. Margaret was confined in the tower, 
 where King Henry expired a few days afterward. Whether 
 he was murdered or died naturally is not known, though the 
 Duke of Gloster is charged with his murder. After a season 
 of rest and dissipation Edward invaded France without ac- 
 complishing any notable result. The condemnation and exe- 
 cution of Thomas Burdet for saying, that he wished the horns 
 of a white buck, which the King had killed while hunting in 
 his park, in the belly of the person who had advised the King 
 to commit that insult on him, was but one of his many cruel 
 deeds. The deer belonged to and was a great favorite of 
 
702 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Burdet, and his expression was uttered under the smart caused 
 by its loss, yet judges and jurymen were found servile enough 
 to condemn him, and he was beheaded for his language. It is 
 a most singular fact that with the growth of judicial power 
 and increased study of the law there was a marked increase 
 of severity and heartlessness in the treatment of persons 
 charged with real or fancied offenses. John Stacy, a clergy- 
 man, was charged with necromancy, tried, tortured, con- 
 demned and executed with the approval of many of the 
 nobility. These men were friends of the King's brother, the 
 Duke of Clarence, of whom the King was jealous. The Duke, 
 having protested against these executions and asserted the 
 innocence of the men thus judicially murdered, was arrested,, 
 and a parliament was summoned, before which he was tried 
 on a charge of having arraigned public justice. The King 
 appeared personally as his accuser and prosecutor, and both 
 houses of parliament were so base as to condemn him and 
 petition for his execution. The King's clemency toward his 
 brother extended no farther than to allow him to choose the 
 manner of his execution, and he was thereupon drowned in a 
 butt of malmsey. On the death of Edward IV in the twenty- 
 second year of his bloody reign the succession in his line again 
 fell to an infant, incapable of exercising kingly powers, and 
 Richard, Duke of Gloster, brother of the deceased King, was 
 made regent. Gloster first proceeded to cause the murder of 
 the near relatives and friends of Edward's widow. Though 
 Richard was one of the most conscienceless beings that ever 
 appeared in human form, he yet sought pretexts and argu- 
 ments to support his grossest villainies and was able to find 
 men vile enough to do the most infamous deeds. To furnish 
 a basis for a claim of right to the crown he caused a preacher, 
 Shaw, to preach a sermon in St. Paul's, charging that Edward 
 IV was a bastard and also his brother the Duke of Clarence 
 and asserting that Richard, Duke of Gloster, only was the son 
 of his father. Here was a most remarkable exhibition of the 
 uncertainties of the transmission of power by inheritance. 
 First there was the question as to whether the House of York 
 or of Lancaster was in the true line. If York, then was the 
 
THE BRITISH EMPIRE 703 
 
 incapable minor a legitimate heir? On no generally accepted 
 theory of inheritance could Richard claim the throne, yet his 
 cunning and his villainy brought him a brief possession of it. 
 By false promises to their mother Richard obtained the cus- 
 tody of her children. The infant King and his brother were 
 thereupon confined in the tower, soon murdered by Richard's 
 orders and buried in the ground at the foot of the stairs under 
 a heap of stones. The Duke of Buckingham, who headed a 
 revolt against the usurpation of Richard, being taken prisoner 
 was summarily beheaded, as were others of less note. Richard, 
 having established his power, summoned a parliament in 1484 
 and sought to gain the support of the nation by governmental 
 reforms. The system of extorting money under the name of 
 benevolences was condemned and prohibited, and this king, 
 who ruled in spite of all law, resorted to legal reforms to 
 fortify his authority. 
 
 It was impossible however for Richard to blind the nation, 
 either to the fact of his usurpation or the many murderous 
 villainies he had perpetrated, and the Earl of Richmond, 
 backed by a small force brought over from France, but far 
 more by the general hatred and distrust of Richard causing 
 supporters to come to his aid from every side, defeated him at 
 Bosworth, where Richard was killed in battle. Many of the 
 King's supporters died with him, and others, taken prisoners, 
 were beheaded for participation in his bloody work. Rich- 
 mond, having succeeded on the field of battle and being rec- 
 ognized as the sovereign, was yet at a loss to know on what 
 legal ground to base his title to the throne. Parliament when 
 convened obsequiously declared, "that the inheritance of the 
 crown should rest, remain and abide in the King" without 
 taking trouble to point out a title by descent or to recognize 
 his right merely as a victor in possession. An act of attainder, 
 condemning all the leading noblemen who had fought on the 
 side of Richard, was passed and their estates seized. His 
 reign was disturbed by impostors pretending to be heirs to 
 the throne rather than by persons of the blood. The first 
 was one Simnel, a boy chosen and put forward as the second 
 son of Edward IV alleged to have escaped from confinement 
 
704 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 in the tower and to be the true heir to the throne, as Duke of 
 York. His pretensions were first made pubHc in Ireland, 
 where he was accepted as the King throughout the whole 
 island, and a force was raised to invade England in his inter- 
 est. A landing was made in Lancashire, and some support 
 came to him from Margaret of Burgundy, who sent his 2,000 
 Germans, and a few Englishmen joined their fortunes with 
 his. A bloody battle was fought in which he was defeated, 
 and being taken prisoner he was deemed so contemptible that 
 he was made a scullion in the King's kitchen. He had no 
 estate to confiscate, so there was nothing to be gained from 
 his execution. A more skillful imposter, said to bear a strong 
 resemblance to Edward IV, was Perkin, who also personated 
 the Duke of York with considerable success and received the 
 support of Margaret of Burgundy. Many English noblemen 
 gave countenance to his pretensions, and Henry, having ob- 
 tained information of their doings, caused a considerable 
 number of them to be arrested and condemned for treason; 
 part of whom were executed and the rest pardoned. Among 
 those condemned and executed was his own lord chamberlain, 
 Stanley, whose great wealth afforded ground for his destruc- 
 tion. Perkin succeeded in gaining a considerable following, 
 but was defeated and taken prisoner. Henry did not at first 
 cause his execution, but he was soon accused of having con- 
 spired to escape from the tower and hanged at Tyburn. The 
 Earl of Warwick and several other great lords were executed 
 for complicity in his treason. Henry's policy was to use the 
 lawyers and the machinery of the courts to destroy the most 
 rich and powerful lords and seize their estates. His avarice 
 was his most marked characteristic. His principal agents for 
 the extortion of money from his subjects were two lawyers, 
 named Empson and Dudley, who used the forms of law and 
 the instrumentality of the courts to rob the people and fill 
 the King's treasury and their own pockets. People having 
 property were falsely or truthfully charged with all sorts of 
 offenses and thrown into prison, frpm which they could 
 escape only by the payment of heavy fines or commutations. 
 It was in Henry VII's reign that the odious Star Chamber 
 
THE BRITISH EMPIRE 705 
 
 received the sanction of Parliament, though it had been in 
 existence long before. The secrecy of its proceedings and the 
 arbitrary methods it pursued were the leading grounds of 
 objection to its authority, but Empson and Dudley had little 
 difficulty with ordinary courts and juries. Trials were not had 
 either before an impartial court or jury. The judges were the 
 creatures of the King and the juries were packed to do his 
 work. During this reign much was done to obliterate the 
 feudal system. Numerous acts of parliament were passed 
 against engaging retainers and giving them badges and liver- 
 ies to wear ; thus prohibiting the great lords from keeping up 
 their private armies to aid them in their outrages. The aliena- 
 tion of entailed estates by means of a fine or common recovery 
 was authorized by statute. Henry was probably the most 
 absolute and despotic king England had ever had, but he did 
 most to break the power of the feudal aristocracy. The in- 
 vention of the art of printing greatly facilitated the dissemina- 
 tion of learning, and the discovery of America stimulated the 
 spirit of inquiry and adventure and brought into play those 
 activities, which have resulted in so much material and moral 
 progress. 
 
 The reign of Henry VUI 1509 to 1547, affords a most in- 
 teresting study for the student of governments and legislation. 
 No more absolute despot ever ruled England and few any 
 other country, yet he exercised his power through the instru- 
 mentality of a parliament and of courts and juries. He found 
 no difficulty in condemning to death whomsoever he willed, 
 yet for the most part the condemnations were for a real or 
 pretended offence and under the form either of a bill of at- 
 tainder or a judgment of a court. He continued the practice, 
 which had prevailed in past reigns, of destroying the obnoxious 
 noblemen, rather than the indiscriminate slaughter of the poor, 
 and the wholesome principle of punishing leaders rather than 
 their more ignorant followers was applied in dealing with the 
 few popular uprisings which disturbed his reign. It is exceed- 
 ingly difficult to comprehend how Henry maintained even his 
 power, and much more so how he preserved a measure of at- 
 tachment from his subjects, with all the rank injustice and 
 
7o6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 barbarity he exercised. Doutbless the destruction of the old 
 nobihty and the continued pohcy of taking off the head of 
 anyone who plotted against the King had much to do with the 
 submissiveness of the lords of his day, many of whom were 
 newly created and received their dignities at his hands. 
 
 Ten parliaments were summoned in the thirty-eight years 
 of his reign and held twenty-three sessions. Law-making went 
 on at accelerated pace, and lawyers and numerous courts 
 were constantly employed in administering the law, though 
 with very httle regard to justice. Penal statutes multiplied 
 and capital punishments followed not only the crime of murder 
 but a long list of offences. Treason came to head the list of 
 capital ones and with misprision of treason added afforded a 
 basis for charges against any subject, who for any cause was 
 obnoxious to the King. By means of a prosecution on an 
 accusation of this kind the King could, in what passed as a 
 lawful manner, destroy his enemy and take his estate. Per- 
 sons against whom there was evidence could be tried before 
 the courts, and those against whom there was none were at- 
 tainted by act of Parliament without the form of a trial. 
 Severe punishments were also inflicted on thieves and rob- 
 bers to an appalling extent. It is said that 72,000 of these 
 were executed during this reign. But the most conspicuous 
 instances of the use of legal forms to effectuate the will of a 
 despot were those involving Henry's wives. First he tired of 
 the Spanish Catharine, who, when he married her, was the 
 widow of his brother Arthur. After living with her for 
 twenty years he pretended that he had conscientious scruples 
 as to the validity of a marriage with the wife of a deceased 
 brother. He first tried to obtain a divorce from the Pope, but 
 failing there he procured an act of parliament prohibiting all 
 appeals to Rome in causes of marriage, divorce, wills and other 
 suits cognizable in the ecclesiastical courts. He then had 
 Cranmar, archbishop of Canterbury, who owed his place to 
 the King, organize a court and pronounce a judgment an- 
 nulling the marriage. Previous to this decree Henry had 
 married Anne Boleyn, a younger and more attractive woman 
 than Catharine who was his senior by six years and now quite 
 
THE BRITISH EMPIRE 707 
 
 faded. After a little time he became suspicious, probably 
 without just grounds, of Anne and caused her to be tried by 
 a jury of twenty-six peers. Though there was no proof of 
 any real criminality on her part, this obsequious jury con- 
 demned her to death, and she was beheaded. The next morn- 
 ing he married her maid, Jane Seymour, who had the 
 fortune to die after the birth of a son. Henry rejoiced over the 
 birth of a son and did not deem it necessary to mourn over 
 the loss of a wife. His minister, Cromwell, who had risen 
 to remarkable wealth and influence, fell out of favor, was 
 attainted by act of parliament and beheaded. Then Henry 
 married Catharine Howard, who in turn was attainted by act 
 of parliament and beheaded for unchaste conduct. Though 
 Henry succeeded in carrying out his horrible purposes, the 
 method pursued was a precedent more favorable to the se- 
 curity of life than secret murder or execution by the arbitrary 
 order of the King. Later parliaments and juries were not so 
 subservient, and later despots were not able to dictate bills 
 of attainder and sentences of courts with such ease. 
 
 The period of Henry VHI's reign covers the time of the 
 great religious struggle, styled the Reformation, and of his 
 public acts those affecting the church and the religious estab- 
 lishments were of the greatest importance and most far-reach- 
 ing consequences. Though he professed adherence to the 
 established faith, he denied the temporal power of the Pope 
 in his dominions. But he went much farther, and in 1534 
 he obtained an act of parliament conferring on him the title 
 of Head of the Church of England, and acknowledging his 
 inherent power "to visit and repress : redress, reform, order, 
 correct, restrain or amend all errors, heresies, abuses, offences, 
 contempts and enormities, which fell under any spiritual au- 
 thority or jurisdiction." Parliament also made it a felony to 
 imagine or speak evil of the King, Queen, or his heirs. Act- 
 ing under this authority Henry made his own selection of 
 what he deemed the essential tenets of religion. In 1539, 
 by the Stat, 31, Henry VHI ch. 14. Six articles of faith 
 were established, and a denial of the first article, which de- 
 clared the real presence of the body and blood of Christ in the 
 
7o8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 sacrament, subjected the person to death by fire with for- 
 feiture of estate, without the privilege of abjuring the error. 
 Denial of either of the other five articles subjected the of- 
 fender to forfeiture of goods and imprisonment at the King's 
 pleasure. The cause of religious freedom was greatly ad- 
 vanced by Henry through the translation and publication of 
 the Bible in the English language. Henry seems to. have had 
 an idea that the book itself furnished a definite standard of 
 faith. He however was not able to find an abiding interpre- 
 tation for himself. Parliament was so complaisant as to 
 grant a ratification in advance of such tenets as his commis- 
 sioners with his approval might formulate, and he soon after- 
 ward published a small volume, called the Institution of a 
 Christian Man, which was made the standard of orthodoxy. 
 He soon became dissatisfied with this and published another^ 
 styled the Erudition of a Christian Man, changing the stand- 
 ard in some respects. Most important of all his public acts 
 was his destruction of the monasteries, which had become 
 numerous and rich. He began first on the lesser ones, then 
 swept them all away and seized their property ; 645 monaster- 
 ies, ninety colleges, 2,374 chantries and free chapels and no 
 hospitals were abolished and their property seized. Though 
 some disorder was occasioned by these acts, Henry found 
 means to conciliate the laity by the uses he made of the 
 property seized. Only in one particular did he meet with any 
 resistance during his whole reign from his parliament, namely 
 that of the granting of taxes, and in this they sometimes made 
 terms with him by which his demands were modified, yet he 
 did not hesitate to force the payment of benevolences. The 
 complete abandonment of all the restrictions imposed on the 
 king by the Great Charter is perhaps best illustrated by Stat. 
 31, Henry VHI, Ch. 8, by which parliament recognized the 
 king's proclamation as having the same force as an act of 
 parliament. By a later act they provided a court for the en- 
 forcement of the king's proclamations. It was during this 
 reign that trade with the Netherlands began to develop, and 
 skilled workmen from Flanders in large numbers came over 
 to England to carry on their trades. In response to popular 
 
THE BRITISH EMPIRE 709 
 
 prejudices against these more skillful foreigners restrictive 
 laws were made against them. Many clumsy and ineffectual 
 efforts were made to regulate wages, the prices of food and 
 commodities, and the style of apparel. Physicians, barbers 
 and surgeons and various tradesmen were made bodies cor- 
 porate with special privileges. In 1546 the first law recog- 
 nizing interest on money as lawful and limiting it to ten per 
 cent was enacted. Fierce religious controversy and persecu- 
 tion for mere opinion began in this reign, and that spirit of 
 martyrdom, which has appealed so strongly to succeeding 
 generations, was manifested by those who from the flames at 
 the stake gloried in death for what they believed to be relig- 
 ious truth. It cannot be said that either Henry or the mass 
 of the people of England in his day exhibited any signs of 
 advanced morality. They did, however, while upholding arbi- 
 trary power to an unprecedented point, proceed by better 
 methods. The parliament passed severe and arbitrary laws, 
 visiting death on offenders great and small, but all this was in 
 an effort to evolve order out of chaos and regulate the con- 
 duct of men by fixed rules to which all were to conform. The 
 religious struggle was an attempt to extract the real truth 
 from a multitude of errors. Fundamental moral principles 
 were little studied or regarded. The all engrossing motive 
 was personal interest, to be furthered by the possession of 
 property on earth and the luxuries of heaven hereafter. 
 
 At the time of Henry's death his son Edward was but nine 
 years of age. By his will Henry appointed sixteen executors, 
 to whom he entrusted the regal power during Edward's mi- 
 nority, which he limited to the age of eighteen. He further 
 appointed twelve councillors to aid them with advice, but on 
 whom no authority was conferred. The Earl of Hereford, 
 afterward made Duke of Somerset, maternal uncle of the 
 King and appointed as one of his executors, was named pro- 
 tector, and as such assumed the actual rulership of the king- 
 dom. The religious controversy went on and Protestantism 
 continued to grow, countenanced and supported by the pro- 
 tector. War with Scotland and with France came on as usual. 
 Lord Seymour, a younger brother of the protector, plotted 
 
7IO EVOLUTION OF GOVERNMENTS AND LAWS 
 
 against his authority and was thereupon attainted by parlia- 
 ment and beheaded on a warrant issued by Somerset. Not- 
 withstanding the growth of Protestantism the burning of 
 heretics went on, and women as well as men went up in smoke 
 for opinions sake. Insurrections having occurred because of 
 the destitution of the common people, an act of parliament 
 was passed making it treason for twelve or more persons to 
 meet on any matter of state and fail to disperse at the com- 
 mand of a lawful magistrate. The foreign trade of England 
 had been carried on from the time of Henry III mainly by 
 agents of the Hanse Towns, to whom he gave a charter of in- 
 corporation with special privileges. These privileges were 
 taken away by this administration and native traders were 
 placed, on an equal footing. An advantageous commercial 
 treaty was made with the King of Sweden, which stimulated 
 trade with that country. Somerset, having made himself dis- 
 tasteful to the leading spirits of the kingdom, was displaced 
 from power and after a short interval put on trial before a 
 jury of twenty-seven peers, among whom were his chief ene- 
 mies and accusers, condemned for treason and executed on 
 Tower Hill. Early in this reign under the influence of Somer- 
 set a bill had been passed mitigating the severity of the law 
 against treason, but later under Northumberland's rule another 
 rigorous act was passed, to which the House of Commons 
 appended the important safeguard of a requirement, that the 
 crime should be proved by two witnesses, confronting the ac- 
 cused. Afterward when a bill to attaint Tonstal, bishop of 
 Durham, was passed by the House of Lords, the Commons 
 rejected it because of the non-production of the witnesses. 
 Edward died in his sixteenth year after a reign of seven years, 
 which again illustrated the folly of the transmission of kingly 
 power by inheritance to infants utterly incapable of exercis- 
 ing it. Various acts were passed for the purpose of regulating 
 trade and manufacturers. One prohibited victuallers and 
 craftsmen from combining to raise prices, another made mi- 
 nute provisions regulating the manufacture of woolen cloth, 
 and another denounced regrators, forestallers and ingrossers. 
 Ale and tippling houses also called for regulation, anrl justices 
 
THE BRITISH EMPIRE 711 
 
 of the peace were empowered to put them under bond for the 
 maintenance of good order. Thus we see that the law-making 
 power then as now was troubled with questions growing out 
 of trade combinations and the sale of intoxicants. 
 
 Mary, eldest daughter of Henry by Catharine, succeeded 
 Edward. She was a bigoted Catholic and a sour old maid. 
 Her brief reign of five years again illustrated the folly of 
 passing supreme power by inheritance in accordance with an 
 inflexible rule. She had no quality of head or heart fitting her 
 for such a station. Narrow bigotry caused the revival of 
 religious persecutions, and 2yj persons were burned at the 
 stake. To do this horrible work a commission of twenty-one 
 persons was named, any three of whom could act. Spies, in- 
 formers and torture were employed to discover victims, and 
 trial by jury was denied. Aside from these persecutions the 
 cruel beheading of Jane Gray, her husband and a number of 
 other prominent men, bore witness to the barbarity of her 
 character. At the age of thirty-seven she married Philip of 
 Spain, son of the Emperor Charles V, her junior by eleven 
 years, an alliance distasteful to her subjects, and which in- 
 volved England in foreign wars resulting in the loss of Calais, 
 so long held by England as a door of entry into France. In 
 the matter of granting supplies, parliament was not so pliant 
 as in the time of her father, and her demands were refused 
 or modified with novel firmness. Nevertheless she forced 
 contributions of money from her more wealthy subjects with- 
 out authority of law, to be squandered in the wars of her 
 husband, who had regard neither for her nor the people of 
 her kingdom. As far as lay in her power she restored the 
 authority of the Pope, but was unable to execute his command 
 to restore the church lands, which had passed into other hands. 
 The long reign of Elizabeth, from 1558 to 1603, is looked 
 on as one of the most prosperous in the whole history of 
 England, and many have been inclined to accord the credit to 
 her. It is one of the arts of the statesman to claim credit for 
 all good fortune that may come from any source and to point 
 out some cause other than his own fault for ever)-- evil. Simi- 
 lar craft has been resorted to by the clergy in all superstitious 
 
712 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 btates for strengthening their authority. EHzabeth was quite 
 as absolute and arbitrary a despot as her father, yet she ad- 
 hered even more closely than he to the forms of law. For 
 supplies she summoned parliaments, but haughtily rebuked 
 them when they exhibited any disposition to legislate in the 
 public interest, claiming as her sole prerogative the general 
 care of the public welfare. Trials and executions for treason 
 were numerous, the most noted being those of her rival, Mary 
 Queen of Scots, the Duke of Norfolk, Earl of Northumber- 
 land and her former favorite the Earl of Essex. She pro- 
 fessed great reluctance and sorrow for the executions of Mary 
 and Essex, but whether real or feigned is doubtful, for the 
 writs were signed by her and the convictions were at her in- 
 stance. In state trials juries were generally called, but in those 
 times afforded no security for a defendant. A verdict of 
 acquittal in opposition to the wishes of the Queen was followed 
 by fine and imprisonment of the jurors. The period of her 
 reign was one of awakening of the activities of the people, 
 not because of her rule but in spite of it. The discovery of 
 America, the great impetus to learning imparted by the art 
 of printing, the spirit of investigation, profoundly stimulated 
 by the reformation, and of adventure in distant seas, all con- 
 tributed to that mental and physical activity which alone can 
 elevate a nation. In her wars Elizabeth is entitled to more 
 credit than most despots. Though sometimes aggressive and 
 though her battles with foreign enemies were all on foreign 
 soil, her general policy was defensive rather than aggressive. 
 Spain having become the greatest power in Europe, she al- 
 lied herself with the Netherlands in their struggle for liberty 
 and then with France to curb Spain. The fortunate storm, 
 which disabled the vast armada built by Philip for the purpose 
 of invading and conquering England, followed by the defeat 
 of the great fleet later on, gave her renown and tended to 
 direct British energies in the course which has since made 
 England mistress of the sea. Shipbuilding and sea ventures 
 were induced largely for private gain, in enterprises which 
 might fairly to be designated as piratical. Long before war 
 had been declared between the two countries, British vessels 
 
THE BRITISH EMPIRE 713 
 
 made many rich prizes by capturing Spanish vessels and pil- 
 laging Spanish towns. Her wars, like all others, were ex- 
 pensive, destructive and resulted in main merely in leaving 
 the sovereignty of territory without great change. The effects 
 of the peaceful activities of preparation for war in building, 
 arming and equipping ships, were of the utmost benefit. The 
 art of shipbuilding was greatly advanced, and the people were 
 taught to look out upon a new world, from which in time the 
 ships were to bring in peaceful and beneficial trade vastly 
 greater profits than it was possible to obtain by the capture of 
 all the prizes then floating on the water. Another great benefit 
 came through the barbarous cruelty of the Spaniards in the 
 Netherlands, which caused many skilled weavers and mechan- 
 ics to go from that country, where the arts were much more 
 advanced, into England. From this period a more rapid im- 
 provement in mechanical arts dates. The gain was not so 
 much in the acquisition of a few skilled artisans, as in the 
 knowledge of their arts which was imparted to others and 
 transmitted to succeeding generations. The religious agita- 
 tion went no farther than an investigation, which assumed the 
 Bible to be the sole authentic evidence of religious truth. The 
 Reformers denied that the book warranted the pretensions of 
 the religious system of Rome. The bigotry of many of the 
 Reformers was not less than that of the Catholics, and heresy 
 against their interpretation of the Bible was as deadly a sin 
 in their eyes as their own opinions were in those of the 
 Catholics. The search after religious truth led directly to an 
 inquiry into the foundation of the claims of the clergy to 
 temporal power and revenues. It was a movement distinctly 
 hostile to the temporal power and earthly advantages of the 
 church officials, priests and monks. This search after the 
 basis of authority naturally led to an inquiry into the basis of 
 the King's authority and the right of the people to freely dis- 
 cuss matters of public concern. In 1576 Peter Wentworth, a 
 Puritan, made a set speech in the House of Commons on the 
 subject of liberty, and especially on the privilege of members 
 of the house to freely discuss public questions, maintaining 
 that the Queen's prerogative was subject to limitation of law. 
 
714 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Strangely enough the house itself took offence at his bold ut- 
 terances, committed him to the custody of the sergeant at arms 
 and appointed a committee to consider his case. After a 
 month the Queen graciously ordered his release. Elizabeth 
 achieved a great success by getting the discordant factions in 
 Scotland to submit their differences to her for arbitration, but 
 the treatment of Queen Mary, her long imprisonment and 
 final execution, bear witness to the mahgnant enmity of Eliza- 
 beth and exhibited a great moral defect in her character. 
 Though the influence of Elizabeth in Scotland was greater 
 than that of most of her predecessors, that kingdom was in 
 constant turmoil and civil strife. Ambitious men and women 
 murdered and robbed each other remorselessly to gain power 
 and place. It is probable that Queen Mary was privy to the 
 murder of a husband, but her accusers were many of them 
 guilty of bloody deeds of little less atrocity. Elizabeth sent 
 troops into Ireland to make the nominal sovereignty of the 
 English crown, which had been recognized for four centuries, 
 real and effective as a governing force, but her generals met 
 with very little success. Instead of yielding revenue, the Irish 
 possessions entailed a burden of expense. Aided by the Span- 
 iards, the Irish, who still adhered to the church of Rome, 
 were able to elude her generals. It was in her reign that the 
 first British settlement was planted in America by Sir Walter 
 Raleigh in Virginia, but it was abandoned and the discontented 
 settlers taken back to England by Drake. Various bold sea- 
 men sailed along the American coast and into the West Indies. 
 The impulse which started men out on the seas came, not from 
 the rulers, but from the oppressed multitude. The freedom 
 of life on the ocean had its influence on the habits of thought 
 of the navigators, and the spirit not only of adventure but of 
 individuality and independence was profoundly stimulated. 
 Elizabeth is sometimes given great credit for having stimu- 
 lated commerce and promoted intercourse with foreign coun- 
 tries. It is true that advantages of this kind accrued from her 
 foreign wars and alliances, but they came as incidents and not 
 as results of a settled policy of trade expansion. On the con- 
 trary no other British sovereign did so much to burden com- 
 
THE BRITISH EMPIRE 7i5 
 
 merce with tyrannical exactions. To reward her courtiers and 
 favorites she issued letters patent granting monopolies of 
 trade to divers persons in a great number of articles, including 
 salt, starch, potash, vinegar, lead, steel, coal, iron, glass, paper, 
 tin, sulphur, calf skins, brushes, pots, bottles and a great num- 
 ber of other articles. This resulted of course in the grossest 
 extortion by the monopolists and the greatest hardship to the 
 general public. For the purpose of enforcing their monopo- 
 lies the patentees were given extraordinary powers of search 
 and seizure, which enabled them to act with the utmost op- 
 pression. Though there was very little of law or justice for 
 the common man, there had grown up a general disposition 
 to submit to authority and to respect the judgments of the 
 courts, no matter how oppressive. The Spanish war pro- 
 foundly stimulated the patriotic sentiment and feeling of 
 national unity. For the treatment of all disputes and dealings 
 with foreign countries the Queen's government possessed the 
 full confidence of the country and was therefore at the head 
 of the whole public force of the nation. At home the power 
 of the nobility, who in times past had provoked so many civil 
 wars, was broken, and while rank injustice lay at the founda- 
 tion of the whole system, there was better order, greater in- 
 dustry and more prosperity than before. Elizabeth did not 
 summon parliament frequently, yet there was much legislative 
 activity in spite of her vigorous and haughty assertion of her 
 prerogative. The early statutes of her time are notable for 
 their verbosity. There was a long one regulating with great 
 particularity artificers, laborers, servants and apprentices, and 
 one, ostensibly for the maintenance of the navy, but really 
 regulating the use of fish and meat and the exportation and 
 importation of various commodities. The spirit of the time 
 found expression in the many criminal statutes, among which 
 were acts punishing perjury, embezzlement, coin-clipping (de- 
 clared treason) forging, fantastical prophesies, buggery, vaga- 
 bonds calling themselves Egyptians (punished with death), 
 unlawful taking of fish, deer or hawks, counterfeiting foreign 
 coin, bastardy, rape, burglary and horse-stealing; and making 
 wandering persons pretending to be soldiers or mariners. 
 
7i6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 felons without benefit of clergy. There were numerous acts 
 relating to procedure in the courts, among which was the 
 statute of jeofails, relieving suitors from some of that extreme 
 technicality, which the courts had observed with reference to 
 pleadings and writs. Religion came in for its full share, and 
 the effort to compel uniformity of religious thought and ob- 
 servance was continued with severe penalties for violations of 
 the acts. More liberal in tendency were acts relating to the 
 transfer of lands by deed of bargain and sale and fines and 
 common recoveries, and with reference to fraudulent deeds 
 and conveyances. It seems to have been thought necessary to 
 regulate everything by law, and numerous acts, regulating the 
 manufacture of cloth, of hats, caps and various articles and 
 the measurement of wood sold for fuel, were passed. There 
 were laws enacted for the collection of debts from receivers 
 of public money, relating to bankrupts, usury, sewers, navi- 
 gation, and a number of them relating to repairs of highways. 
 The exportation of various articles, especially sheep and pelts, 
 was prohibited. The two great universities of Oxford and 
 Cambridge were incorporated by act of parliament, and au- 
 thority was given for the establishment of hospitals or abid- 
 ing and working houses for the poor. The erection of iron 
 mills within twenty-two miles of London was prohibited, as 
 was that of a cottage with less than four acres of ground, if 
 built outside a city or town. Some thought of the public wel- 
 fare was exhibited in an act for the relief of the poor, one to 
 reclaim marsh lands, one creating a special court for insurance 
 causes, and another to prevent extortion by sheriffs and 
 bailiffs. 
 
 In 1600 the Queen granted the first charter to the East 
 India Company with a capital stock of £72,000, which made 
 a successful venture with four ships. In 1582 the number of 
 seamen in England is given at 14,295, and of ships 1,232, of 
 which 217 only were of over eighty tons. The process of 
 emancipation from the ancient personal slavery during this 
 reign reached its end, and after Elizabeth's time there were 
 no more slaves, though the system of land tenure left many 
 in a condition verv little removed from servitude. 
 
THE BRITISH EMPIRE ^ 717 
 
 On the death of Elizabeth the crown passed to James, King 
 of Scotland, thus uniting the two countries, so long intensely 
 hostile to each other, under the same monarch. Though the 
 title of James was very generally and cordially acknowledged, 
 the fact that he came from Scotland contributed somewhat to 
 the growth of that spirit of freedom in the House of Com- 
 mons, which was manifested in his time. In prior reigns at- 
 tendance in parliament had been regarded rather as a 
 burdensome duty than a privilege. Returns of elections were 
 made to the chancellor, who assumed the right to decide who 
 were elected. A controversy having arisen over the right of 
 Sir John Fortesque, who had been outlawed, to sit in the 
 house by virtue of an election, the house asserted its right to 
 determine the question and reversed the chancellor's^ decree 
 excluding him. At the King's suggestion the House of Lords 
 asked a conference on the subject, but the commons absolutely 
 refused and asserted that the question was solely of their own 
 privileges. In another instance they established their right 
 to punish any persons causing the arrest of members of the 
 house, including the officer making the arrest. In 1605 the 
 great Jesuit plot, to blow up the parliament house with gun- 
 powder at the opening of parliament and thus destroy the 
 King and members, culminated in discovery and the arrest, 
 trial and execution of a number of persons implicated. The 
 King inclined to leniency and checked rather than encouraged 
 numerous prosecutions. The spirit of independence and im- 
 portance continued to grow in the house, and in 1607 the 
 commons for the first time began keeping a regular journal 
 of their proceedings. The boldest and best act passed during 
 the whole reign was Ch. 3, 21 James I, by which all grants 
 of monopolies by patent or otherwise were condemned and de- 
 clared "utterly void and of no effect and in no wise to be put . 
 in ure or execution." An exception however was made in 
 favor of inventors, to whom patents for monopolies of their 
 inventions for twenty-one years were allowed. It is also 
 noticeable that further exceptions were made in favor of cer- 
 tain individuals, who had sufficient influence to control parlia- 
 ment. Corporate charters, not onlv to cities and towns but 
 
7i8 EVOLUTION OF GOVERXMEXTS AXD LAWS 
 
 also to crafts, fellowships, manufacturing and trading com- 
 panies, were also allowed with special privileges and rights of 
 monopoly. There was during this reign much legislation re- 
 lating to courts, some of which tended to diminish and some to 
 increase the abuses committed in the name of law, and there 
 were further acts to regulate religious opinions. The dis- 
 covery of the new world and the far east occasioned claims 
 of sovereignty by European kings over distant lands. For 
 the adjustment of these claims the Spaniards and Portuguese 
 applied to the Pope, who in the plenitude of his pretensions 
 granted the east to the Portuguese and the west to the Span- 
 iards with a reservation of his spiritual mastery over all. 
 Against this sweeping claim the English, Dutch and other 
 Protestant nations claimed sovereignty over such parts of the 
 world as were first discovered by any 'of the nation. During^ 
 James' reign the first permanent settlements in America were 
 made. The East India Company received a new patent and 
 increased its capital stock to £1,500,000. Factories for trad- 
 ing were established and conflicts with the Dutch traders 
 began, notwithstanding the political alliance of the two coun- 
 tries. Trade increased and from Christmas 161 2 to Christ- 
 mas 1 61 3 we are told that exports were £2,487,435 and im- 
 ports £2,141,151. This was the age of those literary and 
 intellectual prodigies, Shakespeare and Bacon, the latter a 
 strange combination of moral obliquity and brilliant intellect- 
 uality, to whom some give the credit of completely revolution- 
 izing the system of reasoning and methods of investigation 
 in all scientific researches. The reign of James is generally 
 characterized as weak and inglorious, but it was one of real 
 progress, and though not a strong man, he was not so bad at 
 heart as most of his predecessors, and gave the awakening 
 forces in his kingdom a better chance to grow. He loved 
 peace better than war, and though he did not entirely avoid 
 bloody conflicts with other nations, his wars were of minor 
 importance. The Puritans grew^ in number and in influence 
 in Parliament and were leaders in asserting its independence. 
 When the eflFects of educational influences on the efficiency 
 and usefulness of srovernments and governmental agencies 
 
THE BRITISH EMPIRE 719 
 
 are fairly understood, we shall have made great progress in 
 the science of social organization. No period better illustrates 
 the potency of such influences than that of the reign of 
 Charles I 1625 to 1649. ^^ his father James was less of a 
 tyrant than his predecessors, so Charles was even a more mild 
 and far less absolute ruler than his father, yet influences were 
 at work on the public mind which caused him to be con- 
 demned to death for his despotic acts. Magna Charta had 
 ceased to be read or remembered through the despotic reigns 
 of Henry VII, and his successors down to James. Its forms 
 were observed in some particulars, but its spirit was utterly 
 ignored. When Henry VIII threw off the domination of the 
 Pope and took on himself the title of head of the church in 
 England, he laid the foundation for that religious struggle 
 between the reformers and the crown, which culminated in the 
 reign of Charles. In the Catholic states of Europe the re- 
 formers attacked the papal authority, primarily for its own 
 abuses, without entering on any inquiry into the grounds for 
 the king's temporal power. Hostility to kings was often 
 manifested because of the support given to the Church of 
 Rome, but this hostility led to little or no inquiry into the 
 rights of temporal rulers in purely temporal matters. In 
 England however the kings, having successfully resisted the 
 Pope and established the independence of the state in ecclesi- 
 astical matters, turned their attention to the enforcement of 
 their own creeds and ceremonials on the people. The spirit 
 of the Reformation was a spirit of inquiry after religious 
 truth. During prior centuries the multitude, following the 
 temporal rulers who were almost as ignorant and bigoted as 
 themselves, had been content to receive their religion in such 
 form as it was given to them by the priesthood. The reform- 
 ers sought a purer source of instruction in the Bible, on which . 
 the church claimed to found its authority. They did not seek 
 truth in the open and accept it on its own credit, but assumed 
 that all of religious truth that had been revealed to man was 
 contained in the one book. The reformers, especially the 
 Puritans, were most earnest and zealous students of the Bible, 
 and sought to conform their lives rigidly to its teachings. 
 
720 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 They found that there was Httle that was common in the 
 simple purity of Christ and the elaborate ceremonial of the 
 Roman Church. They therefore became bitterly hostile to the 
 images, the genuflections, and pomp of the cathedral, and 
 insisted on a simple, austere form of devotion. It was the 
 misfortune of Charles in 1633 to place at the head of the 
 religious establishment, as archbishop of Canterbury, Wil- 
 liam Laud, and commission him to reduce the English 
 Churches to a complete uniformity of ceremonial. It was 
 yet more unfortunate that Laud was devotedly attached to the 
 forms of religion and insisted on a most elaborate ceremonial 
 and the use of all those symbols and postures, which were so 
 obnoxious to the Puritians. These he undertook to enforce 
 by virtue of the authority he held under the King. This 
 naturally led to an inquiry into the right of the King to dic- 
 tate and enforce a mode of worship which the Puritans 
 found to be utterly at variance with the simple beauties of the 
 life of Christ. It was not far to pass from an inquiry into 
 the spiritual authority of the king to one into the basis of 
 his temporal power, and Magna Charta afforded a basis of 
 challenge of the king's right to levy arbitrary taxes. We 
 have seen that in James' time the commons under the lead of 
 the Puritans began to assert their independence and authority 
 with a spirit never before shown. Charles found his first 
 parliament disposed to advance rather than abate its claims. 
 To his call for money to carry on the war to recover the 
 Palatinate for his brother-in-law, the elector, the House of 
 Commons responded, that it had no confidence in Bucking- 
 ham, whose counsel Charles followed, and asked that before 
 they granted a further supply than the very small one they 
 had already voted, the King would name counsellors whom 
 they could trust. Charles answered by dissolving parliament, 
 but not till after an act had been passed for the observance 
 of Sunday, a point very much insisted on by the Puritans, 
 and to restrain tippling in inns. A second parliament was 
 summoned, which convened March 17, 1627, with the same 
 element still dominant in the House of Commons, notwith- 
 standing the efforts of the King to obtain a majority favor- 
 
THE BRITISH EMPIRE 721 
 
 able to his views. The first act done was the formulation of 
 a petition "concerning divers rights and liberties of the sub- 
 jects," in which they recited violations of Magna Charta and 
 of numerous statutes for the protection of the citizens against 
 arbitrary power, and complained especially of arbitrary levies 
 of taxes and contributions by the King without the authority 
 of parliament; of arbitrary arrests and imprisonments and 
 denials of the writ of habeas corpus where arrests were at the 
 King's command; of summary convictions and executions 
 without due trial, by commissioners exercising extraordinary 
 powers ; of the quartering of soldiers on private citizens con- 
 trary to law; and of other denials of justice, and concluding 
 with a prayer, "That in the things aforesaid all your officers 
 and ministers shall serve you according to the laws and sta- 
 tutes of this realm." To this petition the King graciously re- 
 sponded in full parliament, ''Soit droit fait come est desire." 
 Let right be done as is desired. This was followed by an- 
 other act for the observance of Sunday. Nothing could bet- 
 ter evidence the tendency of the human mind to cling to mere 
 form and outward show than this and kindred acts. Pro- 
 fessedly in the interest of religion, it had no substantial bear- 
 ing on the observances of the duty of man to man, which 
 after all is the way in which obedience to divine law can be 
 shown. Another act prohibited the sending of children be- 
 yond the seas to be educated in popish doctrines. Attacks on 
 the favorite Buckingham continued, and the commons sought 
 to impeach him. Charles, finding parliament so intractable, 
 dissolved it, but further grants of funds being necessary to 
 carry on his foreign wars he summoned another, which met in 
 1629 after Buckingham had been murdered. During the in- 
 terval between the second and third parliaments the King 
 had proceeded in the old way to collect taxes and otherwise 
 continue the grievances complained of in the petition of rights. 
 When parliament assembled complaints were at once renewed 
 with increased emphasis, and the King to be rid of it dissolved 
 the parliament without any act being passed. He then un- 
 dertook to rule without a parliament, and it was eleven years 
 till the next one convened. During this time he went on in 
 
722 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the old way, exercising arbitrary powers under claim of 
 right by virtue of his royal prerogative. Though he was far 
 less arbitrary and tyrannical than either Henry VIII or Eliza- 
 beth had been, the state of the public mind had become such, 
 that acts, which attracted little attention and met with no 
 resistance during those reigns, called forth the most vigor- 
 ous protests and were generally condemned when perpetrated 
 by his authority. The court of Star Chamber; which was 
 established in the third Henry the VII as a court made up 
 of the chancellor, lord treasurer, and keeper of the privy seal 
 or two of them with a bishop, a lord of the council and the 
 two chief justices of the King's Bench and Common Pleas, for 
 the trial of specified cases; had greatly extended and abused 
 its powers by condemning persons secretly, without allowing 
 a jury trial, and therefore was very obnoxious. Another 
 court, called that of High Commission, which exercised a 
 similar arbitrary authority in ecclesiastical matters and the 
 power of punishing offenders charged with heresy and other 
 offenses of a religious character, was equally unpopular. 
 When Charles finally yielded to necessity and summoned a 
 parliament in 1640, the first business undertaken was an at- 
 tack on Strafford his chief minister. The Protestant Scots 
 were in open rebellion against the efforts of archbishop Laud 
 to impose his system of formal worship, and the majority of 
 the Parliament were in sympathy with the Scotch rebels. 
 Thus the peculiar spectacle was presented, of a British Parlia- 
 ment backed by a Scotch army in its controversy with the 
 King. Finding Parliament far more intent on redressing 
 public grievances than on granting him supplies or upholding 
 his authority, the King hastily dissolved it. He found it 
 necessary, however, to soon summon another, which con- 
 vened on Nov. 3, 1640, and is known in history as the Long 
 Parliament. It began by pushing the impeachment of Straf- 
 ford and caused him to be condemned and beheaded. After 
 the passage of some acts of minor importance, by Ch. 10-16 
 Charles I the Court of Star Chamber, which had become so 
 hateful, was abolished, and by Ch. 11 of the same session 
 the court of High Commission was also put out of existence. 
 
THE BRITISH EMPIRE ']2Z 
 
 Chapter twenty prohibits the summoning of persons to take 
 the order of knighthood, by which great extortions had been 
 practiced by the King. By these acts the most potent instru- 
 ments of arbitrary power were destroyed with the concur- 
 rence of Charles. Prior to that time all the judges had held 
 office during the pleasure of the king and were his chief 
 instruments of oppression, both in taking the lives of those 
 he wished to destroy and in robbing people of their property 
 through judgments rendered in the name of law. At the 
 request of parliament all the judges were given new patents 
 to hold office during good behavior, thus rendering them to 
 some extent independent of the King. A rebellion of the 
 Irish, who still adhered to the Catholic faith, was attended 
 with great barbarities on their part, resulting largely from 
 religious zeal. Parliament was more intent on remedying 
 grievances than on subduing the Irish rebellion. A commit- 
 tee appointed for that purpose brought in a remonstrance 
 against many abuses, which was published and vehemently 
 discussed throughout the nation. The King published an 
 answer to it. The Commons sought to limit the King's power 
 by numerous restrictions and declared that the interposition 
 of the Peers in the election of members of the House of 
 Commons was a breach of its privileges. A majority of the 
 Peers sided with the King, and the two houses could not agree 
 on legislation. The clear preception of a multitude of abuses 
 of governmental powers, which the sovereigns had long been 
 accustomed to exercise, and the free discussion of them, led 
 at once to a remarkable ferment of the public. Hatred of 
 ecclesiastical usurpation could only find full expression 
 coupled with hatred of civil tyranny. An abuse of power 
 was seen to be an abuse whether under the guise of spiritual 
 or temporal government. The pent up protests against the 
 oppression of ages burst forth in all its gathered force, and 
 the democratic spirit daily gained in strength and boldness. 
 The King was slow to realize the force of the current and, 
 when he did, he took rash measures to check it by causing 
 a charge of treason to be lodged in the House of Lords 
 against Lord Kimbolton and five of the leading members of 
 
724 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the House of Commons. A sergeant at arms in the King's 
 name demanded the five members from the house, but the 
 house asserted their privilege from arrest. The King then 
 went in person to the house and demanded them, but as they 
 were not present he got no answer. The excitement con~ 
 tinned, and the claim of Privilege of Parliament suddenly 
 grew into one of vast and continuing importance. The multi- 
 tude sided with the House, and the King found himself 
 without support. Not only the men but the women also 
 joined in tumultuous denunciation of the Papists and in 
 support of the Commons. The King retired to York and 
 refused his assent to the acts of Parliament. The leaders 
 formulated their demands and submitted them to the King, 
 by which they sought to place the executive power in a min- 
 istry responsible to parliament, to secure the judges against 
 the influence of the King, and wreak vengeance on the 
 Catholics. The King, perceiving that the real purpose of 
 Parliament was to effectually curtail his power, refused to 
 make further concessions. Both sides prepared to use force 
 and civil war ensued. The advantage was generally on the 
 side of the King in the first stages of the conflict, but at the 
 hard fought battle of Marston Moor the parliamentary forces 
 under Cromwell gained a great victory. Attempts were made 
 to come to a settlement of the controversy, but no basis of 
 accommodation could be agreed on, and the Commons found 
 time to proceed with the impeachment of Archbishop Laud 
 whom they caused to be condemned to death by the vote of a 
 shadow of the House of Lords, seven only of whom voted on 
 the final decision. At Naseby the King met with a defeat 
 which proved decisive of the war, and from that time on the 
 success of the parliamentary forces was continued, until the 
 King adopted the desperate expedient of delivering himself 
 up to the Scotch forces, then assembled near London. After 
 much negotiation the demand of the Scots of pay for their 
 troops was acceded to by Parliament and £400,000 was agreed 
 to be paid. Thereupon the King was delivered to commis- 
 sioners appointed by Parliament. Then followed the usual 
 difliculty ensuing after a civil war, the disposition of the 
 
THE BRITISH EMPIRE 725 
 
 victorious army, clamorous for arrears of pay, and which 
 Parliament desired to disband. Cromwell now shaped events. 
 He first seized the person of the King and became the cham- 
 pion of the cause of the soldiers, at whose head he assumed 
 authority. Dissensions had grown up between Presbyterians 
 and Independents, in the House and out of it. Cromwell 
 placed his dependence on the army. The King had the in- 
 discretion to attempt escape from Hampton Court, where he 
 was detained, but fell into the hands of Hammond, governor 
 of the Isle of Wight, a devoted adherent of Cromwell. Va- 
 rious uprisings occurring in England and Scotland, Cromwell 
 at the head of the army proceeded to restore order by the 
 strong hand of military power. While he was thus engaged, 
 the Parliament attempted to act independently and make a 
 settlement with the King, by which the monarchy would be 
 restored with limitations of power dictated by Parliament. 
 Cromwell, having crushed opposition without, proceeded to 
 enforce his mastery on the Parliament by purging it, i.e. ex- 
 cluding from its sittings the Presbyterian members who op- 
 posed him. The remaining members then proceeded with a 
 high hand and having wholly ignored the lords, whom they 
 could no longer control, they charged the King with treason 
 and organized a court of 133 members, named by the Com- 
 mons, to try him. The twelve judges were at first appoined 
 among the number, but as they denied that the King could be 
 tried for treason, they were left off the list. Like many other 
 courts organized to take men's lives, it condemned the King, 
 contrary to all established doctrines of English law, and he 
 was executed. Other persons obnoxious to the dominant 
 power in parliament were tried by a newly organized court 
 and condemned to deoth. In the exercise of their newly ac- 
 quired power Cromwell and his followers pursued substan- 
 tially the same tyrannical methods that had been followed by 
 the kings, and sentenced men to death by court martial and 
 other judgments, when it suited their convenience to do §0. 
 In levying taxes they raised far greater sums than any king 
 had ever obtained with or without the concurrence of Parlia- 
 ment, and much by methods as irregular as any of which 
 
726 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 they had complained so loudly. Nothing could better illu- 
 strate the proneness of men intrusted with power and re- 
 strained by no effectual check to abuse it. The Parliament 
 having killed the King assumed full governing power and 
 under Cromwell's guidance exhibited remarkable vigor. Not 
 only were all the adherents of the king in England forced to 
 submit, but Ireland was reduced after a barbarous warfare, in 
 which many people were ruthlessly slaughtered and refused 
 quarter after defeat. The Scotch having refused to submit 
 to the British rule and invited Charles II to take the throne 
 on most humiliating conditions, war was waged against them 
 till Charles after many adventures by the aid of loyal friends 
 escaped through England to Normandy. Scotland was re- 
 duced to submission, and war was then waged on the sea 
 against the Dutch w^ith varying success. The Parliament 
 having shifted attention from the achievements of the army 
 to those of the navy, and having determined to reduce the 
 land forces, Cromwell backed by his grenadiers entered the 
 house of parliament, ordered its members to disperse and de- 
 clared it dissolved. Soon afterward he convened a body of 
 128 persons, designated by himself from England, Scotland 
 and Ireland, to whom he entrusted all powers of state, but he 
 soon dismissed them after their having by a formal deed of 
 assignment restored the supreme power into his hands. A 
 council of army officers then bestowed on Cromwell the title 
 of Protector and prepared what was termed "the instrument 
 of government," which provided for a council of not more 
 than twenty-one or less than thirteen to hold during good 
 behavior. The Protector was given full executive powers, 
 and he was to summon a parliament every three years and 
 allow them to sit five months. A standing army of 20,000 
 foot and 10,000 horse was established. The war with the 
 Dutch resulted in further successes for the British, and a 
 peace was concluded on favorable terms. Cromwell then 
 summoned a parliament, chosen at an election at which the 
 franchise was restricted to those having estates of £200 value, 
 of 400 members from England, thirty from Scotland and 
 thirty from Ireland. After a session in which all the articles 
 
THE BRITISH EMPIRE 72^ 
 
 of Cromwell's g-overnmental scheme were discussed with great 
 freedom, he became disgusted and dissolved the parliament. 
 Another was summoned in which he secured a favorable 
 majority by excluding many of those chosen who were op- 
 posed to him. This Parliament proposed to make him King, 
 and he was very desirous of accepting, but such had been the 
 force of his own teachings, that the army, on which he had 
 at all times relied, would not consent to it; nor would the 
 members of his own family consent, and he felt forced to 
 decline. In 1658 Cromwell died, having ruled the three king- 
 doms with more vigor and achieved more success on the sea 
 than any of the so-called legitimate rulers who had preceded 
 him, without any settled system of government or recognized 
 basis for his authority. He in fact gained general respect for 
 his abilities and knew how to control an army, ever the surest 
 support of despotic power. The judges he chose to adminis- 
 ter the law are given credit for integrity and impartiality, 
 virtues little known by their predecessors. The system of 
 government administered was not a very radical change from 
 that to which the people were accustomed. That part which 
 always comes nearest the people, the courts, was a continua- 
 tion of the old system with the most obnoxious tribunals, 
 namely the Star Chamber and High Commission, eliminated, 
 and with judges of more integrity and juries of far more inde- 
 pendence. Parliament had always been regarded as an in- 
 stitution of the government, representative of the people. 
 The great change was in the exaltation of its prerogatives and 
 power, but even as to this the real power was still wielded 
 mainly by Cromwell, styled protector, rather than king. By 
 the religious agitation and the teachings of the Protestant 
 preachers the multitude had been educated to deny the right 
 of any human authority to dictate forms of worship, and the 
 questioning of the right of the king to take his subjects' lives 
 or property followed almost as a necessary corollary. Crom- 
 well's rule, though tainted with many moral blemishes, was 
 in all essential points an advance and improvement on what 
 had preceded it. He was placed at the head of the state, not 
 from the accident of birth but by capacity to organize and 
 
728 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 rule. Parliament became a living force, exhibiting the in- 
 tellectual power and impulses of many vigorous minds, in- 
 stead of being a mere instrument of the king's will. Judges 
 began to think of doing justice instead of seeking merely 
 their own advancement by subserviency to the king. The 
 House of Lords, which since the beginning of the war of the 
 roses had been always filled with favorites and dependents of 
 the king, faded into nothingness in a time when the founda- 
 tion of their claims to power was scrutinized. Cromwell's 
 great capacity was exhibited more strongly in the organization 
 of the army and in the efficiency of his administration of 
 civil affairs than in the destruction of ancient abuses. Effi- 
 ciency of organization is equally essential in every form of 
 government. Co5peration for the accomplishment of com- 
 mon ends is essential to all great achievements, and this im- 
 plies, either that the multitude must follow the dictates of a 
 leader, or must move in concert in accordance with estab- 
 lished rules thoroughly comprehended by each so far as his 
 conduct is affected. The former is the simpler combination, 
 the latter the more advanced and efficient. Cromwell was a 
 despot, who resorted to educational methods in the exercise 
 of his power, as all great leaders necessarily do. He taught 
 the soldiers obedience and mutual confidence. He taught the 
 citizens obedience to law, which still lived on though the 
 king's head was off. In these comments doubtless far too 
 much is attributed to Cromwell, the leader. Many men of 
 less note wielded potent influence in that period when capa- 
 city, rather than title, made leaders. 
 
 On the death of Oliver Cromwell the council recognized 
 his son Richard as his successor. A new parliament was 
 summoned and also a general council of officers of the army, 
 but discord prevailed, no leader having either the ability or 
 the authority to direct the councils of the nation, and no 
 common tie existing of sufficient strength to induce harmony. 
 Parliament was dissolved and Richard's authority was no 
 longer regarded. Whatever existed of governing power was 
 in the council of state. It was decided by them that the Long 
 Parliament, which had been dispersed rather than dissolved 
 
THE BRITISH EMPIRE 729 
 
 by Cromwell, should be reconvened, and about seventy of its 
 members were gathered into a session designated as the Rump 
 Parliament. Charles II prepared to invade the kingdom and 
 assert his right, and the royalists everywhere made ready to 
 support him. The rivalry between the officers of the army and 
 Parliament increased, till it reached an open clash of author- 
 ity, and the army under Lambert forcibly turned the members 
 away, when they attempted to meet in the Parliament House. 
 General Monk having succeeded in bringing the army under 
 his command from Scotland and the Parliament having recon- 
 vened, it finally voted its own dissolution and issued writs for 
 the election of a new one. 
 
 The elections resulted overwhelmingly in 'favor of the 
 loyalists. Parliament assembled and received a letter from 
 the king, in which he promised liberty of conscience, recogni- 
 tion of the authority of Parliament in certain particulars, pay 
 for the army, and a general amnesty, with such exceptions 
 only as Parliament should make. The House of Lords again 
 convened, the King was solemnly proclaimed and invited to 
 return and take possession of the government. During the 
 protectorship taxes were levied in the form of monthly dues, 
 excise and customs. In 1653 the post house had grown to 
 sufficient importance to be farmed out at £10,000 a year. 
 The Puritans, to escape the persecutions of Laud in the time 
 of Charles, had emigrated in large numbers to New England, 
 where at the outbreak of the civil wars they were estimated to 
 number 25,000. Among the zealous reformers of the com- 
 monwealth was John Milton, whose fame, like that of Shakes- 
 peare, was reserved for later ages. Charles on his accession 
 named chief officers, who were generally satisfactory to the 
 people. These were a chancellor, steward of the household, 
 high treasurer and secretary of state. As the king had been 
 recognized by the Parliament, the compliment was returned 
 and the Parliament, though not summoned by him, received 
 his recognition by formal act of Parliament. (Ch. i. Charles 
 II.) All judicial acts of the commonwealth were confirmed. 
 Parliament excepted from the general amnesty those who had 
 taken an immediate part in the execution of the king, and six 
 
730. EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of his judges were tried and executed. In its grant of ton- 
 nage and poundage the ParHament fixed the rates to be 
 charged on each article in a long schedule alphabetically ar- 
 ranged and published with the act, thus establishing a definite 
 system of customs. 
 
 The spirit of independence, which had dominated the Par- 
 liament during the reign of Charles I, still lived under Charles 
 II, notwithstanding the general feeling of loyalty to the king. 
 The disposition to freely discuss all public matters in the 
 House of Commons was manifest at each session. The king 
 and the nobility were no longer the sole nor even the main 
 representatives of the nation. There was a growing public 
 sentiment among classes which in former years had taken no 
 part in governmental affairs. Merchants, farmers, and me- 
 chanics, had their convictions in matters of religion, and were 
 discussing state affairs. The attention of the public was now 
 ifairly turned toward foreign colonies and trade abroad. Ri- 
 valry with the Dutch, who had led both in manufacturing and 
 ship building, brought on a naval conflict for the mastery of 
 the sea, injurious to both and indecisive in result, one of the 
 consequences of which, when peace was made, was the transfer 
 of New York to the British. Though there was so much 
 public discussion of public matters, it seems surprising that 
 there could be such adherence to forms in the trials of persons 
 charged with offenses, and so many cruel and unjust execu- 
 tions by judgments of courts. The virulence of religious 
 prejudice must be charged with most of it. In attempts to 
 enforce the acts for uniformity of worship many Scotch and 
 other convenanters and noncomformists were cruelly mur- 
 dered. On the charge of a popish plot to kill the king and 
 reinstate popery many distinguished men were tried and con- 
 demned on the testimony of vile informers, and much innocent 
 blood was shed. With the spirit of individuality and free- 
 dom, which had become so prevalent, there was a fierceness 
 and brutality of a peculiar order, which perpetrated monstrous 
 injustice in strict accordance with established legal forms. 
 Here and there glimmerings of light appeared, and occasion- 
 ally a jury acquitted an innocent man, but harsh and bloody 
 
THE BRITISH EMPIRE 73^^ 
 
 vengeance on those charged with an offense seemed to accord 
 best with the fierce spirit of the age. From this reign the or- 
 ganization of those great poHtical parties known as Tory and 
 Whig dates, the former attached to the Crown, the latter 
 asserting the rights of the commons, though in later years 
 divisions have occurred of a wholly different character. Frorn 
 this reign also dates the assertion by Parliament of the right 
 to direct the application of public moneys and be informed as 
 to the use actually made of it. The independence manifested 
 by the commons led to the bribery of members by the ministry 
 in order to carry their measures through Parliament. This, 
 though bad, was a better condition of affairs than that under 
 the kings who secured the passage of their measures by intimi- 
 dation and constraint of members, for it left the honest ones 
 still free to act and to speak. In levying taxes the old sys- 
 tems were largely abandoned and new expedients adopted. 
 Land taxes were based on value and taxes on incomes, bank- 
 ers, money and stock were levied, with excise taxes and duties 
 on imports. The first Parliament passed an act declaratory of 
 a policy long pursued. It is entitled, ''An act for the encour- 
 agement and increasing of shipping and navigation," and 
 prohibits the importation of merchandise from the colonies in 
 Asia, Africa and America, in any ships but such as belonged 
 to people of the British Isles, under penalty of forfeiture of 
 all of them, and excludes aliens from dealing as merchants or 
 factors in the plantations. The same provisions were extend- 
 ed to importations from Russia and Turkey. By Ch. 24 
 of the acts of the first session the court of wards and liverifes 
 was abolished, and the feudal incidents to land tenure of 
 wardships, liveries, primer seisins, ousterlemanis and forfeit- 
 ures by marriage, were taken away, as was also all tenure by 
 knight service, and all tenures thereafter to be created by the 
 king were required to be in free and common socage. Pur- 
 veyances were prohibited and, in lieu of the feudal revenues 
 which had been enjoyed by the king, a far better source was 
 provided in the excise taxes. Chapter thirty-five provides for 
 the establishment of a post office, recites that several public 
 post offices have been heretofore erected, and provides for the 
 
72>^ EVOLUTION OF GOVERNMENTS AND LAWS 
 
 appointment of a postmaster general. This was the beginning 
 in England of that great postal system, which is now world 
 wide and has become the most economical and efficient busi- 
 ness establishment ever organized by man. Among the other 
 important acts passed were ones, for the government of ships 
 and forces at sea; for regulating corporations; to prevent vex- 
 atious arrests and delays in suits at law ; against the Quakers ; 
 regulating the militia; requiring uniformity of pubHc prayers 
 and religious ceremonies ; to prohibit printing seditious pamph- 
 lets, ect. ; for the encouragement of trade ; for the holding of 
 Parliaments once in three years at least ; prohibiting the impor- 
 tation of cattle from Ireland ; for rebuilding the city of London 
 (which had been nearly destroyed by fire) ; to prevent and 
 suppress seditious conventicles; to prevent the planting of 
 tobacco in England and regulating the plantation trade; 
 against popish recusants; for the prevention of frauds and 
 perjuries (the substance of this act, which requires certain 
 contracts to be in writing, has been reenacted in substantially 
 all English speaking states) ; for taking away the writ de 
 heretico comburendo ; requiring corpses to be buried in wool- 
 en, and providing the writ of habeas corpus to secure the 
 liberties of subjects. Other acts relating to the king's reve- 
 nue, and restrictive acts arbitrarily regulating manufactures 
 or restricting trade, were passed, as well as some tending to a 
 better administration of justice. It is to be observed that the 
 best acts are usually either those repealing an existing law, or 
 those prohibiting an abuse of his power by the king. Of the 
 beneficial constructive acts that creating the post-office is the 
 most notable, the others are of more dubious value. The 
 marked progress of the nation went on, partly by reason of, 
 but more in spite of the government. Restrictive acts affect- 
 ing trade and manufactures were passed in the interests of 
 favored persons and classes but the spirit of the nation was 
 sufficient to go forward in spite of such obstacles. The ca- 
 pacity for combination and cooperation steadily developed in 
 connection with the building of ships and the prosecution of 
 trade and manufactures. Organizations of men to do useful 
 things were formed outside the governmental system with 
 
THE BRITISH EMPIRE yZZ 
 
 little assistance from it and often in spite of its interference. 
 In these fields the great lords and landed proprietors had 
 little part, but the landless younger sons and their descendants 
 and the more humble traders and artisans, joining in gainful 
 occupations, promoted (commerce and its instrumentalities, 
 and thereby made manufacturing on a larger scale practicable. 
 It is of the nature of each useful and productive employment, 
 that an exchange of products with those engaged in other 
 industries is essential to a high degree of prosperity, while 
 the wars of kings are destructive of the products of industry 
 and restrict commerce. Yet through jealousy of their rivals 
 in trade the British merchants encouraged war with Holland 
 to their own great detriment, and the inordinate greed of 
 traders has often since sought aid from the destructive agen- 
 cies of the state. 
 
 James II came to the throne with an unquestioned title, but 
 distrusted by the people because of his leaning to the Catholic 
 religion. Though at first received with a strong feeling of 
 loyalty, he was wholly wanting in tact as well as in steadi- 
 ness of purpose. He not only offended the religious preju- 
 dices of the people by attending mass, in violation of the act 
 of Parliament prohibiting its celebration, but placed Catholics 
 in office without exacting the required oath. He proclaimed 
 toleration of all religious beliefs, but this was in violation of 
 the law, and as it was believed to be done solely in the interest 
 of the Catholics, though applying in terms to the persecuted 
 dissenters, it offended the latter as well as the adherents of 
 the established faith. He also attempted to assert a preroga- 
 tive right to taxes without a grant by Parliament. The most 
 abhorrent acts of his reign were those following the attempt 
 of the Duke of Monmouth, an illegitimate son of Charles II, 
 to enforce a claim to the throne, backed in Scotland by the 
 Duke of Argyle. The rebellious forces were quickly and 
 easily overcome and cruel butcheries followed, but more cruel 
 and cold blooded than those perpetrated by the soldiery were 
 the executions for treason under sentence of that monster of 
 judicial cruelty, Jeffreys, chief justice of England, who in a 
 very brief time caused the death of 251 persons, many of 
 
734 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 whom were innocent, but all of whom were found guilty by 
 packed and coerced juries. James attempted to restore the 
 Court of High Commission, and for that purpose appointed 
 seven commissioners with unlimited authority over church 
 affairs. Nothing more obnoxious could have been done by a 
 Papist. When the storm of public indignation had been raised 
 by the arrest, trial and acquittal by a jury, of six bishops,, 
 who remonstrated against his order to read his declaration of 
 indulgence in all the churches immediately after divine ser- 
 vice, and his eyes were open to the fact that he was without 
 support in any quarter, he hastened to correct his errors by 
 revoking all his most unpopular acts, but it was too late. 
 
 His son-in-law, the Prince of Orange, who had long been 
 looked to by the Protestants, was invited into England, and 
 having gathered and brought over a large naval force, was 
 cordially received by all classes, even the army deserting and 
 going over to him. James, finding himself deserted by the 
 nation and his own family, was allowed to escape into France,, 
 and by his flight was regarded as having abdicated the throne. 
 The succession of James I, King of Scotland, to the throne of 
 England had been followed by the rapidly increasing inde- 
 pendence of Parliament. James came as the legal heir to the 
 throne and was recognized as such. The case of William, 
 however, was different; he himself had no hereditary claim, 
 and his wife was not then the heir, because of the birth of a 
 male heir. But the son was not yet entitled to rule because 
 James still lived and had not formally abdicated. The theory 
 of the inheritance of kingly power was for the time definitely 
 set aside. William and Mary had no foundation on which to 
 rest their claims but that of the will of the nation expressed 
 through Parliament. A distinct advance was thus made 
 in recognition of the rights of the Houses of Parliament to 
 represent the nation, and in the statute establishing the corona- 
 tion oath the supremacy of the law over the king, as well as 
 his subjects, was recognized. The ceremony prescribed re- 
 quired the administration of the oath by an archbishop or 
 bishop in the following form: "The archbishop or bishop 
 shall say, 'Will you solemnly promise and swear to govern 
 
THE BRITISH EMPIRE 735 
 
 the people of this kingdom of England, and the dominions 
 thereto belonging, according to the statutes in Parliament 
 agreed on, and the laws and customs of the same.' 
 
 ''The king 'and queen shall say, T solemnly promise so to 
 do.' 
 
 "Archbishop or bishop, 'Will you to your power, cause law 
 and justice in mercy to be executed in all your judgments?' 
 
 "King and Queen, 'I will' 
 
 "Archbishop or bishop, 'Will you to the utmost of your 
 power maintain the laws of God, the true profession of the 
 gospel and the Protestant reformed religion established by 
 law ? and will you preserve unto the bishops and clergy of this 
 realm, and to the churches committed to their charge all such 
 rights and privileges as by law do or shall appertain unto 
 them or any of them ?' 
 
 "King and Queen, 'All this I promise to do.' 
 
 "After this the king and queen laying his and her hand on 
 the holy gospels shall say, King and Queen, 'The things which 
 I have here before promised I will perform and keep, so help 
 me God.' Then the king and queen shall kiss the book." 
 
 As the impulse which placed William and Mary on the 
 throne was mainly a religious one, the early legislation was 
 leveled against the papists and, while test oaths were still re- 
 quired, there was toleration of divergence of opinion among 
 Protestants within certam limits fixed by statute. The people 
 were not yet willing to leave the matter of religion to the free 
 conscience of the individual. 
 
 With the accession of William and Mary came no radical 
 change in the theory of government or the system of laws. 
 There was merely an advance toward representative govern- 
 ment. The great multitude were still deprived of all right of 
 suffrage as well as of ownership of the soil. The ruling force 
 was still the great landowners and the titled aristocracy. 
 Those who had acquired wealth in the cities were accorded 
 some representation, both in municipal affairs and in the elec- 
 tion of members of Parliament, but the poor ignorant laborers 
 everywhere were still excluded from all participation in public 
 affairs and deprived of all facilities for gaining an education. 
 
n^ EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Privileged classes maintained their complete ascendency in 
 accordance with a system of laws designed to accomplish that 
 end. Inheritance of lands by the rule of primogeniture pre- 
 served great estates in the hands of a landed aristocracy. 
 While the war of the roses and the barbarities of 
 those times had resulted in the extermination of many of the 
 leading families among which the kingdom had been divided 
 by William the Conqueror, there were still as many titled 
 aristocrats as ever. The king always had power to make 
 them, and increased his own importance by raising his favor- 
 ites to the peerage, for it has always been true that, 
 
 "A king can make a belted knight, a Marquis, Duke and 
 2! that." 
 
 The great landholders whether titled or not have generally 
 been the champions of privilege, which must always be syn- 
 onymous with injustice. In England the landed aristocracy 
 followed no useful employment, but regarded every useful 
 citizen, who labored in any field other than politics, as an in- 
 ferior. Idling, drinking, gambling, hunting and fighting in 
 the early days, and horse-racing and other sports in later 
 times, have been the principal employments of those favored 
 with the privilege of taking a large share of the products of 
 the labors of others without compensation. A great retinue of 
 servants to do nothing but wait on the lord and magnify his 
 importance, also supported by the labors of others, has always 
 been deemed a mark of greatness. In times when the multi- 
 tude were too poor to attend schools, wealth afforded a chance 
 for further distinction from education. Some advantage has 
 accrued to the nation from the studies of those who despised 
 labor generally, but probably far less than if the opportunities 
 had been better distributed, for many of the country gentry 
 were too ignorant to read, and drunkenness and debauchery 
 have at all times been more attractive to many of them than 
 the strain of study. No country illustrates better than Eng- 
 land the steady potency of that great moral law, which com- 
 mands man to labor and promises due reward for it. Though 
 for many generations the burden of supporting a vicious aris- 
 tocracy and a more or less dissolute and pretentious priesthood 
 
THE BRITISH EMPIRE -/zy 
 
 had been imposed on the multitude of ignorant and none too 
 industrious or moral laborers, the advancement of England 
 from its barbarism was due entirely to the efforts of artisans, 
 merchants, teachers and other useful people. The idle and 
 dissolute classes, who claimed superiority and enjoyed such 
 extensive privileges, were always an incubus, retarding pros- 
 perity and often invoking the dire calamities of war and 
 desolation. That useful activities are the source of all pro- 
 gress is so self-evident that it would seem that all men ought 
 to recognize it from the slightest consideration, yet the strange 
 fact exists that the privileged classes in all countries look down 
 on and despise the useful ones. It was and still is so in 
 England; yet the beginnings of its real prosperity were the 
 introduction of useful arts from the continent, the advance- 
 ment of knowledge concerning manufactures and trade, the 
 building of ships and sailing to distant lands, and the exchange 
 by the merchants of surplus British products for the surplus 
 products of different sorts from other countries. The manu- 
 facturer, the ship builder and the merchant had already done 
 much toward building England, when William and Mary 
 came to the throne, not aided by but in spite of the dissolute 
 aristocracy. Many of the aristocratic families had gone to 
 ruin and poverty as the penalty imposed by nature on idle- 
 ness, improvidence, debauchery ai>d extravagance, and many 
 great landed estates had already passed into the hands of those 
 who had organized industrial forces and performed truly 
 civilized services in the useful fields of industry and com- 
 merce. The ruling force of the nation no longer reposed 
 exclusively in the robber kings and nobles, but the more 
 enterprising and useful classes in the towns had some repre- 
 sentation in the house of commons, now rapidly advancing 
 into the position of the dominant political force in the king- 
 dom. It need not be assumed that the motives actuating 
 those employed in gainful callings were so superior. They 
 too often asked and obtained from the kings and Parliament 
 special privileges giving them unmerited advantages. The 
 trade monopolies granted in such numbers by Elizabeth and 
 other sovereigns were as unjust and faulty in principle as the 
 
738 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 land monopolies of feudal times, and merchants and manu- 
 facturers have at all times been just as willing to receive 
 them. The fundamental superiority however still remained 
 with the industrialists, for no profit could be made without 
 carrying on their useful activities, which were still of some 
 value to the public though coupled with monopoly and extor- 
 tion. No great reform in the direction of the abolition of 
 privilege was accomplished when William and Mary took the 
 throne, but an advance in the idea of government was made. 
 Instead of a continued recognition of the ownership of the 
 kingdom by the king as his property, the right of the people 
 to choose a king was asserted and exercised. The many 
 centuries of education in the law of land tenure and inherit- 
 ance, of ecclesiastical tithes and privileges, of titles, preemi- 
 nences and inherited right to rule, had done their work so 
 well, that no attack was made on any of these, save the king's 
 excessive prerogative. 
 
 The principal officers named by William, after he assumed 
 authority, were the members of his privy council, two secre- 
 taries of state, privy seal, master of the horse, of the robes, of 
 the ordinance, and twelve judges. Commissioners were 
 named for the treasury, the admiralty and chancery, and to 
 remove doubts as to this procedure an act of Parliament was 
 passed authorizing the appointment of commissioners in lieu 
 of a chancellor. The first act of Parliament in William's 
 reign was one ''for removing and preventing all questions and 
 disputes concerning the assembly and sitting of this present 
 parliament," which had not been regularly summoned. Wil- 
 liam and Mary were not the lawful heirs of the throne. The 
 House of Lords was really the only constitutional body of 
 recognized authority, but King and Commons joining with 
 the Lords in an act of Parliament settled their own authority 
 in a manner which the nation approved and sustained. A 
 long act was passed levying a tax of twelve pence on the 
 pound of annual revenue from lands and other property, and 
 providing a mode for its collection and payment into the ex- 
 chequer. The last section of this act contained the require- 
 ment, that an account should be rendered to the Commons in 
 
THE BRITISH EMPIRE 739 
 
 Parliament of the use made of the money so levied. This was 
 a new and striking recognition of the authority of the Com- 
 mons and of the principle that taxes were levied for public 
 purposes rather than as gifts to the king. Another act was 
 passed containing elaborate regulations for the collection of 
 an excise tax on beer, ale and other liquors. The Scotch 
 Parliament also accepted William and Mary and tendered them 
 the Crown of Scotland. In the British Parliament political 
 parties had become arrayed against each other, and the strug- 
 gle of Whigs and Tories for ascendency went on in parlia- 
 ment and at the elections for each succeeding parliament. 
 James, having gained the support of France, invaded Ireland, 
 where he received the support of the Catholics but was op- 
 posed by the Protestants. James met with such success at 
 first that he was able to summon an Irish Parliament, which, 
 being made up only of his adherents, was of course favorable 
 to his interest. In Scotland he was supported by the High- 
 landers under the lead of Dundee, who gained a great victory, 
 but lost his life, at Killicrankie. The battle of the Boyne, 
 participated in by William in person, settled the question of 
 supremacy in Ireland, and James again embarked for France, 
 though his adherents continued the struggle for some little 
 time thereafter. The massacre of the Jacobites of Glencoe by 
 William's order evidences his willingness to maintain his 
 authority by the most cruel and bloody deeds. No more 
 cowardly or unwarranted massacre is recorded in history. 
 The position of William as King was not such as that of 
 Henry VIII, holding an undisputed title to the throne, for he 
 held contrary to the theory of hereditary right. He therefore 
 could not safely force Parliament to do his will by arbitrary 
 arrests of recalcitrant members or other methods of coercion. 
 He chose bribery as his system of control. By inviting a 
 Hollander to rule England, Parliament placed on the throne a 
 man far more intent on furthering the interests of his native 
 state than those of England, and in the long and expensive 
 struggle with the French King the resources of Great Britain 
 were used to further the interests of their Dutch rivals, with 
 whom they had been at war so shortly before, or at least what 
 
740 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 were supposed to be their interests, for war rarely benefits the 
 masses of the people of any country. By the bribery of mem- 
 bers of Parliament of either party, as occasion required, Wil- 
 liam secured a majority for all his most important demands. 
 The increase of foreign trade afforded new subjects of taxa- 
 tion, and custom duties were charged on all imported goods 
 brought from India and China, and on numerous other articles 
 brought from Europe or other foreign ports. An excuse 
 was found in the necessity for protecting the shipping en- 
 gaged in foreign trade from the attacks of the French, with 
 whom they were at war. Peace would of course have been 
 a far better protection, but the kings of these great countries 
 did not choose to make peace. The era of trading companies 
 was fairly begun. The East India Company sought, but was 
 not accorded, a monopoly of the eastern trade. In 1692 a 
 corporation named "the company of Merchants of London 
 trading to Greenland" was created by act of Parliament with 
 a stock of at least £40,000. The war with France afforded 
 an excuse for a system of annuities, which were allowed to be 
 purchased from the exchequer by payment of a gross sum to 
 be used up in the war. The principal business of Parliament 
 was still that of imposing burdens of taxation and calling out 
 soldiers, sailors and mariners for the great war with France. 
 The old parliaments had mainly followed the pay as you go 
 system, but it was now found that by means of loans and 
 annuities the money might be raised for immediate use and 
 the burden of payment postponed. In 1694 Parliament passed 
 "An act for granting to their majesties several rates and 
 duties upon tonnage of ships and vessels, and upon beer, ale, 
 and other liquors, for securing certain recompenses and ad- 
 vantages in said act mentioned, to such persons as shall vol- 
 untarily advance the sum of £1,500,000 toward the carrying 
 on the war against France" by which certain taxes were levied, 
 and provision was made for the incorporation of the Bank of 
 England with a capital stock of £1,200,000. The leading pur- 
 poses of Parliament in this act were to facilitate raising a 
 loan' for the war and at the same time furnish a desirable in- 
 vestment for subscribers to the stock. The act expressly al- 
 lows members of Parliament to be stockholders. In this 
 
THE BRITISH EMPI'RE 741 
 
 manner a new form of combination was established, by which 
 the government of England entered into a combination with 
 certain citizens to carry on the business of banking and con- 
 duct the financial operations of the government. The idea 
 was not new, as similar institutions existed in Italy and Hol- 
 land. By a subsequent act provision was made for enlarging 
 the capital stock of the bank, with many long and complicated 
 provisions difficult to summarize. In 1698 a new rival East 
 India Company was incorporated with exclusive privilege of 
 trade to the East Indies, reserving a right to the old company 
 to continue until Sept. 29, 1701. The two afterward con- 
 solidated during this reign. Another great company was 
 chartered for the African trade. An inspection of the many 
 acts relating to trade discloses the great attention it received 
 and the efforts of individuals and companies to gain advan- 
 tages by restrictive legislation, tending to secure to them either 
 a complete monopoly of some branch of trade or some undue 
 advantage in it. Sometimes the act took the form of an out 
 and out monopoly as in the trade to India, sometimes by pre- 
 venting the importation of foreign goods in competition with 
 domestic, and again by prohibition of the exportation of raw 
 materials like wool, hides, etc. Occasionally acts are found 
 abolishing some special privilege, against which there was an 
 outcry, but in more instances the motive of the law was to 
 confer a special advantage on some favored ones. The cor- 
 ruption of the members of Parliament is much condemned by 
 historians, as also is the system followed by William of carry- 
 ing his measures by bribing members with money or by 
 appointing leading ones to office. In considering the moral 
 turpitude of these acts they should be compared with preceding 
 rather than subsequent conditions. The idea of treating 
 moneys voted to the king as merely trust funds to be used for 
 the public good, had its beginning only in the reign of Charles 
 II. Elizabeth did as she liked with the funds granted her. 
 She bestowed public land or money on whomsoever she 
 pleased, for service or out of mere favor, and scorned to ac- 
 count to anyone for it. Under William the trust fund theory 
 had gained firm hold on the public, and the practice was 
 
742 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 adopted of raising money by taxation and at the same time 
 making express provision for its application. It had been 
 started under James I but did not become a settled system 
 till the reign of William. The fact that questions of this sort 
 could be and were freely discussed, of itself evidences a 
 marked advance in the public comprehension of the limitations 
 of authority and the legitimate purposes of government. 
 Though William obtained larger contributions than any of 
 his predecessors, he took them under greater restrictions. 
 Parliament had become the ruling force, and the king's pre- 
 rogative had been greatly reduced. The policy adopted by 
 him of changing his chief ministers in such manner as to 
 have men in accord with the party majority in Parliament, 
 though started as a mere expedient to accomplish his own 
 ends, was the foundation on which ministerial accountability 
 was built, which in time took substantially all power out of 
 the hands of the king and vested it in the ministry, as rep- 
 resentatives of the party having a majority in Parliament. 
 The ruling class was divided into Whigs and Tories, and 
 party strife became very intense. The real power of the 
 kingdom was in the landed aristocracy and the men who had 
 gained wealth by trade and other enterprises. The great 
 multitude were still ignorant and poor and allowed neither a 
 share of the face of the earth or of the accumulated knowledge 
 of the past, nor were they given any voice in the government. 
 The adherence of the Irish people to the Roman church and 
 to King James afforded an excuse for the confiscation of the 
 greater part of the lands of the island, and was the starting 
 point of that great system, through which a title to the soil 
 of Ireland was vested in certain English favorites, to whom it 
 was sold at a low price or given as a mere matter of favor; 
 thereby placing all the native population dwelling on it at 
 the mercy of foreign owners, who have often exhibited little 
 or no regard for the rights or welfare of their tenants. No- 
 where are the workings of theories of hereditary ownership 
 of land, disconnected from occupancy, better illustrated than 
 in the case of these Irish estates. Through the accident of 
 birth the heirs of these first proprietors, who got a paper title 
 
THE BRITISH EMPIRE 743 
 
 to vast estates without giving an equivalent, have from gen- 
 eration to generation been protected by the law, the courts 
 and the army in whatever measures of oppression and extor- 
 tion they have seen fit to adopt and enforce on the generations 
 of native people born on the land. Nowhere else is the utter 
 want of moral foundation for such a legal theory and system 
 more strikingly exhibited. The tiller of the soil, who alone 
 has done anything to make it produce, has often starved, while 
 the crops he has raised have gone merely to gratify the pride 
 and minister to the luxurious Hving of distant favorites of the 
 law, who have done no service meriting any return whatever. 
 Thus mere accident of birth is by law made the highest merit 
 and given the greatest reward. The same system prevailed 
 in England with the modification, that in most instances the 
 owners lived on their estates more or less of the time and 
 squandered their revenues on servants about them and neigh- 
 boring tradesmen, while all was taken away from Ireland. 
 The making of the laws was still quite as much in the hands of 
 those favored by this system, after the House of Commons 
 came to be a leading factor in the government, as before. The 
 great landowners and men of great wealth chose the members, 
 mostly from among their own number. Nevertheless real 
 reform went on, the method of administering a fundamentally 
 unjust system of laws was considerably improved. Procedure 
 was gradually made a little less technical; sherifiFs, bailiffs 
 and other court officials were held to a mere strict perform- 
 ance of duty; contracts and such rights as the law gave were 
 better enforced. Above all freedom to perceive the truth in 
 relation to any matter and to express it steadily came to be 
 regarded as less dangerous to the good order of society. The 
 great educational process, through which errors are detected 
 and discarded, was going on among the people, and the con- 
 tentions of political parties and religious factions caused a 
 continual challenging of the basis of claims of privilege and 
 authority. 
 
 The essential division of the powers of state in England as 
 subsequently maintained fairly dates from the reign of Wil- 
 liam and Mary. The House of Commons, as the direct rep- 
 
744 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 resentative of the ruling class in the nation, was the leading 
 force, the House of Lords held second place as a law-making 
 body, the King was still the executive head, but required to 
 act through ministers accountable to Parliament. The judges 
 were liberated from the dictation of the king by holding 
 tenure of office during good behavior, and subject to removal 
 only by Parliament. In the act regulating the succession to 
 the Crown, Ch. 2-12 and 13, William III, it is provided that 
 no person to whom the crown shall pass shall engage in any 
 war for the defense of any territory not belonging to the 
 crown of England without the consent of Parliament, nor 
 shall he go out of the three islands without such consent ; that 
 resolutions of the privy council shall be signed by such of the 
 members as consent thereto ; that no foreigner shall be made a 
 privy councillor; that no officer or pensioner holding under 
 the king should serve in the House of Commons ; that judges 
 should hold office ''qtuimdiu se bene gesserinf with salaries 
 ascertained and established; and that the law-making power 
 shall rest in the king and two houses of parliament. These 
 provisions, though not so often mentioned as the Magna 
 Charta, were of far more real importance, in that they bal- 
 anced power against power and made one arm of the govern- 
 ment a check on the abuses of another, and especially because 
 they effectually curbed the arbitrary power of the king. 
 
 On the death of William in 1701, Anne, Princess of Den- 
 mark, though not the heir in the regular order of succession, 
 was proclaimed Queen; Charles being excluded on account of 
 religion and she having been declared the next in the Protest- 
 ant line. Among her first acts was a declaration of war 
 against France, which continued until a treaty of peace was 
 concluded at Utrecht in 171 3. Many great battles were fought 
 and great victories won under the leadership of the renowned 
 Marlborough in the low countries, Germany, Spain and Portu- 
 gal, but the main result of the war was vast expense, much 
 bloodshed and misery. At the conclusion of peace England 
 gained territory in America, which she has ever since retained. 
 The public debt, which at the revolution in 1689 was £664,263 
 grew under William to £16,394,702 to which Anne added 
 
THE BRITISH EMPIRE 745 
 
 £37,750,661 more, notwithstanding unusually liberal grants 
 of revenue during both reigns. The wars and the voyages 
 of the sailors were valuable in an educational way by bringing 
 Englishmen in contact with the people of other countries and 
 teaching them the geography, products and arts of other lands. 
 The discovery of America and the opening of eastern trade 
 had introduced many articles of food, clothing, etc., which 
 had been unknown to -Europeans before. Potatoes, maize and 
 tobacco from America, spices, tea, coffee and eastern manu- 
 factures, had become important articles of commerce. While 
 war went on the struggle for wealth continued and the spirit 
 of adventure grew. The most valuable achievement of the 
 reign of Anne was the union of Scotland with England, which 
 was brought about by a treaty framed by commissioners ap- 
 pointed by the queen for each nation under authority of their 
 respective parliaments. The leading features of the treaty 
 were, that the crown of the united kingdom of Great Britain 
 should be vested in the Princess Sophia and her heirs, as had 
 been before settled by act of the English Parliament; that 
 the United Kingdom should be governed by a single Parlia- 
 ment; that the subjects of each country should have equal priv- 
 ileges and share the public burdens under certain adjustments 
 of customs and excise provided for ; that the coin of Scotland 
 should be made the same as that of England; that the laws 
 concerning public rights, policy and civil government should 
 be the same throughout the united kingdom, but that no alter- 
 ation should be made which concerned private rights, except 
 for evident utility of the subjects in Scotland; that the courts 
 in Scotland should remain as before, subject to such regula- 
 tions as Parliament might thereafter make ; that heritable offi- 
 ces in Scotland should continue to the owners as property; 
 that Scotland should be represented in Parliament by sixteen 
 peers and forty-five commoners, to be elected in such manner 
 as the then existing Scotch Parliament should provide; that 
 Scotch peers should rank next after English and before those 
 thereafter created, but should not be allowed to sit in Parlia- 
 ment unless chosen as provided. This treaty was ratified by 
 the parliaments of both countries, though not without oppo- 
 
746 EVOLUTIO'N OF GOVERNMENTS AND LAWS 
 
 sition, and on Oct. 23, 1707, the first British ParHament 
 assembled at Westminster. The genius for organization, 
 adventure and speculation continued to manifest itself among 
 the people, and in 171 1 the famous South Sea Company was 
 incorporated with a monopoly of trade to the South Seas. 
 The charter was granted to persons holding navy bills, de~ 
 bentures and other public securities. Although the reign of 
 Anne was burdened with the moral reproach of a long con- 
 tinued and exhausting continental war, it stands greatly to 
 her credit that no subject's blood was shed for a charge of 
 treason. 
 
 On her death in 171 4 the elector of Hanover was proclaimed 
 King under the name of George I. He began his reign by 
 dismissing the Tory officials and selecting Whigs. The ad- 
 herents of the pretender, as he was styled, raised a revolt with 
 considerable head in Scotland, but were crushed without much 
 difficulty. The barbarous spirit again manifested itself in 
 prosecutions for treason, both by impeachment and trials in 
 the courts, and many persons were executed with customary 
 barbarities of hanging, drawing and quartering, while others 
 in large numbers were transported over the seas. As usual 
 the martyrs included in their numbers some of the best men 
 of the time. The desire for the fruits of the labors of others 
 was still active among those near the throne, but the old 
 method of seizing great estates and forcing the occupants to 
 labor for the possessor had largely given way to newer and 
 more refined methods of using the governing power for the 
 benefit of the favored few. The public debt, incurred in for- 
 eign wars, had become the basis of the formation of great 
 companies, which were given the countenance and support of 
 the government in return for loans of money on public securi- 
 ties. Public revenues became payable to such corporations 
 for interest on the public debt, and the people were induced to 
 take their stocks on the faith of the support of the govern- 
 ment and of the power and influence of the boards of di- 
 rectors, in which were included many of the leading men of 
 the kingdom. The greatest of such corporations were the 
 Bank of England, the East India Company and the South Sea 
 
the' BRITISH EMPIRE 747 
 
 Company. Among others of less note were the Royal Assur- 
 ance and London- Assurance companies. About 1720 the 
 managers of the South Sea Company succeeded in arousing a 
 spirit of wild speculation in its stocks. It had become the 
 holder of a large part of the public debt, and through the arts 
 of its managers came to be regarded as a source of unlimited 
 profit. The craze became so great that £100 shares sold as 
 high as £1,000 without any substantial reason for such a 
 valuation. Other speculative corporations, projected to carry 
 out more or less useful purposes, were formed in great num- 
 ber. The spirit of speculation took possession of great num- 
 bers of all classes and callings, and the most shrewd and 
 unscrupulous for a brief time gained enormous profits, not 
 from the fruits of legitimate business ventures, but from the 
 sale of stocks in these corporations. Industry was abandoned 
 by many and luxurious living and the vices, crimes and follies 
 peculiar to the rich became prevalent. But prices of shares 
 could not be advanced forever. When they began to fall, 
 people awoke from their dreams to see the true character of 
 the scheme in which their money was invested, and the in- 
 evitable crash and misery followed. Parliament acted with a 
 vigor and effectiveness seldom exhibited there or elsewhere. 
 An investigation was ordered through a committee, which dis- 
 covered the gigantic frauds of the directors and their friends, 
 who were required to disgorge their ill-gotten gains for the 
 satisfaction of the defrauded stockholders. The tedious proc- 
 esses of the courts were dispensed with, the directors were 
 required by Parliament to bring in inventories of their estates 
 and an act was passed confiscating them to make good the 
 damages' resulting from their frauds. The practice of bribing 
 members of Parliament to carry the king's measures through 
 continued, and large sums were required to be raised by tax- 
 ation to pay pensions and bribes given by the king. The 
 principal business of Parliament continued to be to grant the 
 king supplies of men and money for foreign wars, either 
 entered on or threatened. The nation was both warlike and 
 eager for gain. Foreign affairs had come to be a matter of 
 great concern to the merchants, who found that in many in- 
 
748 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 stances wars were destructive of their profits, while in others 
 they imagined that their interests could be promoted by force. 
 The division into Whigs and Tories and the constant presence 
 i:i Parliament of a minority opposed to the ministry, caused 
 public discussion of matters of interest, the discovery of the 
 truth and adoption of an advanced moral standard. Though 
 each party was violent and unscrupulous in its attacks on the 
 other, the people judged between them, and a very small mi- 
 nority were influenced mainly by the truth. The multitude 
 followed their blind prejudices most of the time. George, 
 though not a man of either great ability or high moral pur- 
 poses, maintained his power and was exceptionally successful 
 in obtaining the support of his Parliaments. 
 
 The reign of George II was similar in main to that of his 
 father. There were the same political parties and corruption. 
 The government was still looked to by that class of crafty 
 men, who everywhere surround the ruling force, as a means 
 of obtaining wealth without meritorious service. Pensions 
 were paid to favorites out of money collected by taxation, 
 and the most venal and undeserving of men were rewarded 
 with incomes they did nothing to earn. In the efforts to gain 
 party advantage moral principles were appealed to to con- 
 demn adversaries, and though the evil practices continued, the 
 public slowly gained some perception of the true principles of 
 government. On the whole the reigns of the first three 
 Georges were periods of increased power in the king and 
 his ministers, though maintained by corrupt practices rather 
 than by general acknowledgment of prerogatives. The 
 morals of the people in the times of George I and George II 
 are said to have been very low, but commerce and industries 
 continued to expand. The impulses that pushed civilization 
 forward came from active brains employed in useful callings, 
 rather than from those more prominent persons, who in the 
 king's councils or in Parliament merely sought wealth they 
 did not earn and power to do evil. Under the Georges it is 
 difficult to detect much of use to the public in the functions 
 of government. The courts, though considerably improved 
 through greater independence of royal favor, were still prin- 
 
THE BRITISH EMPIRE 749 
 
 •cipally employed in enforcing the privileges of the landed 
 aristocracy, the demands of monopolists and other favorites 
 of the government and the barbarous punishment of persons 
 charged with crimes. Of the sums raised by taxation war 
 took the major part, court favorites came next, and roads, 
 bridges and public works a comparatively insignificant part. 
 Foreign trade grew, rather in spite of governmental restric- 
 tions and burdens than because of its fostering care and 
 protection. The enterprise of the merchant constantly found 
 ways of utilizing the wealth of the distant quarters of the 
 globe, notwithstanding the trade monopolies and the taxation 
 imposed for the benefit of favored persons. The real pro- 
 gressive Britain was in the merchants' counting rooms, the 
 factories abroad, the industrial establishments, on the sea, 
 and among the truth seekers, who by speech and writing con- 
 demned the immoralities of the age. Though the king and 
 his ministers continued to bribe members of Parliament to 
 vote for their tax bills, the established system of inquiring 
 into the use made of public money tended to check inordinate 
 expenditure and to repeatedly call public attention to the fact 
 that the money raised by taxation was mostly worse than 
 wasted. The system of administration through a ministry 
 accountable to Parliament was still in a tentative stage. The 
 king claimed the right to choose his ministers and many sup- 
 ported his claim. The accountability of the ministry was es- 
 sential to any effectual check on the king's conduct of the 
 government, for the king himself could only be reached by 
 revolution. It is a strange circumstance that in a country so 
 far removed from Rome, by geographical position, by race, 
 and yet more by the peculiar spirit of its institutions, the Latin 
 language should have been so long used in the courts. It was 
 not till 1 73 1 that a bill was passed providing that thereafter 
 all pleadings and processes should be in the English language. 
 The Seven Years' war from 1756 to 1763, which involved not 
 only the rival kingdoms of England and France, but also 
 Austria, Russia and the rising power of Prussia, was known 
 on its American side as the French and Indian War and in- 
 voked a cruel and bitter war between the colonists of the 
 
750 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 respective countries in America and India. The result on sea 
 and land was exceedingly favorable to British supremacy. In 
 America Canada became and has ever since remained a British 
 possession and in India the French v^ere overpowered and 
 British ascendency established. At sea British naval victories 
 made England the first naval power of the world. To its 
 mastery of the ocean Great Britain mainly owes its wealth 
 and power. The surplus products of all lands are floated to 
 its harbors for the use of its people. The expenses incurred in 
 the war in America led to the question as to the share to be 
 paid by the colonies and the method of imposing taxes on 
 them. 
 
 The right to regulate the commerce of the colonies and all 
 foreign possessions had always been claimed and exercised by 
 Parliament, and was not seriously questioned, though the bur- 
 den of the restrictions on exchanges in the most favorable 
 markets was felt to be very heavy. In 1764 by Ch. 15, acts 
 of 4 George III duties were imposed on various articles im- 
 ported into the American colonies from Great Britain ; on 
 white sugar £1 2s. per one hundred pounds in addition to the 
 duties imposed by former acts. On indigo 6d. per pound, 
 coffee £2 19s. 9d. per one hundred pounds. Calico made in 
 Persia, China or India and imported from Great Britain 2s. 
 6d. per piece of ten yards or less. Like duties were imposed 
 on wines, silks and other cotton stuffs. The same act con- 
 tains a prohibition on the importation of sugar into Ireland 
 except from Great Britain and many elaborate provisions de- 
 signed to secure to British merchants a monopoly of trade 
 with the American colonies. Among other acts passed at the 
 same session of Parliament was one giving a bounty on hemp 
 and undressed flax imported from America; one permitting 
 the exportation of rice from South Carolina subject to duty, 
 and another prohibiting bills of credit issued in the colonies 
 from being made a legal tender. All these acts were acqui- 
 esced in as the exercise of legitimate power. At the next ses- 
 sion held in 1765, Parliament passed an act which met with a 
 different reception. It is published as Ch. 12-5 George III 
 and imposed stamp taxes, not only on all paper and parch- 
 
THE BRITISH EMPIRE 75i 
 
 ment used in legal proceedings in all the different courts in the 
 colonies, or on which were written wills, deeds, contracts or 
 bills of sale, but also pamphlets, advertisements, almanacs and 
 many other publications. A tax of £io was imposed on the 
 parchment on which a lawyer's license to practice was written. 
 Courts were prohibited from receiving in evidence any paper 
 not duly stamped, and a penalty of £io was imposed on any 
 person executing an instrument without causing it to be 
 stamped. The act was very long (twenty-four pages), and 
 minute in its regulations. It provided for commissioners to 
 sell the stamps and enforce their use. Unlike the duties on 
 imports and exports these stamp taxes called for a direct 
 contribution from each citizen, when it became necessary for 
 him to use paper or parchment for almost any purpose, and the 
 act was such an assertion of the sovereignty of Parliament as 
 to challenge the attention of the people. Nothing could better 
 exhibit the lack of understanding on the part of British states- 
 men of the spirit of the colonists, than the passage of so 
 vexatious an act to be enforced on the liberty loving Ameri- 
 cans. The ministry soon learned their mistake and found how 
 utterly impracticable it was to enforce the law. In the next 
 session of Parliament, held in the same year, Ch. 11-5 
 George III repealed the whole act, but this was most unwisely 
 followed by Ch. 12, entitled "An act for the better securing 
 the dependency of His Majesty's dominions in America upon 
 the Crown and Parliament of Great Britain," which is some- 
 times called the declaratory act; in which it was provided 
 'That the said colonies and plantations in America have been, 
 are and of right ought to be subordinate unto and dependent 
 upon the imperial crown and Parliament of Great Britain, and 
 the King's majesty by and with the advice and consent of the 
 lords spiritual and temporal and commons of Great Britain, in 
 Parliament assembled, had, hath and of right ought to have 
 ifull power and authority to make laws and statutes of suffi- 
 cient force and validity to bind the colonies and people of 
 America subjects of the crown of Great Britain in all cases 
 whatsoever," and that all acts of colonial legislatures to the 
 contrary are void. Though the vexatious stamp act had been 
 
752 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 repealed, this act asserted the power of padiament to reim- 
 pose it or enact any other law or impose any other tax it might 
 see fit. The colonists denied this power, because they were 
 not represented in parliament. They asserted that taxes were 
 grants made by the taxpayers through their chosen representa- 
 tives to the king, and that this was a fundamental principle 
 of the British constitution. At the same session of Parliament 
 certain duties were removed. At the next session Ch. 46-7th 
 George III was passed imposing duties on a few articles im- 
 ported into the colonies. On white or red lead 2s. per one 
 hundred pounds. Tea 3d. per pound. Glass, clear or white 
 4s. 8d. per one hundred pounds, green is. 2d. per one hundred 
 pounds, paper of different grades at various rates. 
 
 The attention of the colonists having been aroused to the 
 principle of taxation, even this mild measure was stubbornly 
 resisted. The attempt to compel obedience to parliamentary 
 authority by force was met by force. France and Spain 
 seized the opportunity of the revolt of the colonies to cripple 
 an hereditary foe and joined their forces against Great 
 Britain. The result was the loss of the most valuable pos- 
 sessions of the British nation. The ideas of government en- 
 tertained by the colonists were largely those prevailing in 
 England in the time of Cromwell. The reaction which had 
 ensued in England had not been felt to such an extent in 
 America, where there was no distinctly aristocratic element 
 of society. The adoption by the colonies of a republican form 
 of government had no marked influence on British institutions. 
 The laws of England, except as modified by legislative action, 
 were adopted by the colonies, and the theories of government 
 were generally the same, except as to the hereditary king and 
 nobility. When the French revolution came, England was not 
 affected as were the countries of continental Europe. Through 
 its Parliament the nation had representation in the govern- 
 ment, and there was a peaceable method for reforming the 
 evils of government. The judiciary also was far more inde- 
 pendent and enjoyed in a much higher degree the confidence 
 of the people than in continental states. Above all much 
 greater freedom of speech and of business combination and 
 
THE BRITISH EMPIRE 753 
 
 enterprise was allowed in Great Britain than on the continent. 
 In Parliament members were accustomed to freely express 
 their views on all public matters, and pamphleteers made at- 
 tacks in print on whatever they saw fit. This measure of 
 liberty the ruling power of Great Britain, which now rested 
 in the great landholders and capitalists, accorded to the 
 masses. The descendants and successors of the ancient feudal 
 barons still claimed most of the face of the country, which 
 they held by descent or purchase in large tracts, but they were 
 no longer the only wealthy class. Trade, industries and 
 speculation had produced another wealthy and more active 
 class, who gained seats in Parliament and often added to 
 their wealth by special acts in the interest of themselves and 
 their associates. Parliament had always been an aristocratic 
 body. Ch. 20, 33, George II, enforcing the act of 9th Anne, 
 required members of the House of Commons to swear that 
 they were qualified to sit for the places for which they were 
 returned. If elected as a knight of the shire, the member 
 must have £600 a year income from lands, if a citizen, bur- 
 gess or baron of the cinque ports £300. All the forces of a 
 government thus constituted were arrayed against the prin- 
 ciples of the great National Assembly of France, which pro- 
 claimed liberty, equality and fraternity. Some liberties the 
 English people had long enjoyed, which were unknown in 
 France and Continental Europe generally, but equality and 
 fraternity were utterly repulsive and abhorrent to those who 
 not only conducted the British government but also shaped 
 public sentiment. The general effect in England of the 
 French revolution was to strengthen the hands of the aris- 
 tocratic element and to place the country in an attitude of 
 intense hostility to French revolutionary ideas and to the 
 French nation. Throughout the long struggle which ensued, 
 England, the most liberal and progressive of the great Eu- 
 ropean states during the preceding century, took its dogged 
 stand as the most conservative and bitter foe to French lib- 
 erty. For the long and destructive wars which devastated 
 Europe and caused so much good blood to be poured out 
 on the great battlefields, England is justly chargeable with 
 
754 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 a large measure of responsibility. From that war the Eng- 
 lish people suffered far less than those of the continental 
 states, over which the great armies under Napoleon and the 
 combined forces of his foes fought. To the sea and the 
 British navy the people of the isles owed security from in- 
 vasion. British armies fought on the continent, and many 
 good men were slaughtered in distant lands, but war's deso- 
 lation on English soil was avoided. The policy of increasing 
 the navy had been pushed with such success that, long before 
 the final overthrow of Napoleon, the French fleets were de- 
 stroyed and Great Britain was master of the seas. In 1800 
 the Irish Parliament, which was not much of a representa- 
 tive of the Irish people, consented to a union with Great 
 Britain with a representation in the British Parliament of 
 four lords spiritual, twenty-eight lords temporal, elected by 
 the Irish peers for life, and one hundred members of the 
 House of Commons. The semblance of Irish nationality dis- 
 appeared with the termination of the Irish Parliament. This 
 followed a rebellion, which had been crushed and punished 
 with great barbarity, chargeable in some measure to relig- 
 ious prejudice and the bitter hatred existing between the 
 Protestant Orangemen and the Catholics. Throughout all 
 time it has been a part of the trade of rulers, civil, military 
 and ecclesiastical, to claim the credit of all advancement in 
 material interest of the nation, and to attribute all calamities 
 and misfortunes of the people to their refusal to follow the 
 guidance of the constituted authorities. During the long 
 reign of George III the rulers provoked the disastrous war, 
 which resulted in the independence of the American colonies. 
 They also engaged in the long and bloody struggle carried 
 on to crush the political truths promulgated by the leaders 
 of the French revolution. Numberless good men were sac- 
 rificed in the strife, and a vast national debt was incurred 
 which, though somewhat reduced, still burdens the English 
 people. By the American war £121,267,993 was added to 
 the principal of the debt and £601,500,343 during the 
 French war. These items stand charged in the account 
 against the rulers. There were other heads at work in the na- 
 
THE BRITISH EMPIRE 755 
 
 tion, which wrought out far different resuhs. In 1 763 Wedge- 
 wood estabHshed the great Staffordshire potteries, in 1767 
 Hargreaves brought out the spinning jenny, and Compton's 
 mule was finished in 1779. Cartwright conceived the idea of 
 the power loom, and Watt's steam engine was made in 1768. 
 Through these great aids to human effort the English peo- 
 ple were greatly benefited, the productiveness of their la- 
 bors multiplied, and industries and trade powerfully stimu- 
 lated. In 1776 Adam Smith published his Wealth of Na- 
 tions, in which he attacked the narrow, selfish policy of the 
 government with respect to trade, and exhibited in its true 
 light the manifold benefits of free and unrestricted exchange 
 of products. The lessons he taught were not learned and 
 digested sufficiently to be utiHzed till more than half a cen- 
 tury had elapsed, but the time came when England profited 
 immensely from the freedom of her ports. In 181 5 the 
 landholding aristocracy, true to their inherited narrow sel- 
 fishness, obtained the passage of a law prohibiting the im- 
 portation of corn till the price was above 80s. a quarter. With 
 the growth of manufacturing interests came an ever increas- 
 ing demand for a larger measure of political influence and 
 better compensation for the mechanics and laborers. The 
 great manufacturing towns of Birmingham and Manchester 
 were without representation in Parliament. The laboring 
 classes were no longer willing to be treated as of no import- 
 ance, but the ruling classes resisted their demands and re- 
 sorted to force to repress them. A great meeting having 
 been called at Manchester in 1819, an attempt was made to 
 arrest a popular speaker, followed by a charge of cavalry on 
 the multitude, the killing of six persons and wounding of a 
 far larger number. Free speech among those who have real 
 grievances to complain of is always dangerous to those who 
 profit from the wrongs, and in this case an effort was made 
 to suppress it by force. The effect of the cruel slaughter was 
 to further the cause of the laborers far more than any agi- 
 tator's speech could have done. 
 
 In the reign of George III there was a remarkable in- 
 crease in parliamentary activity. Long acts were passed on 
 
756 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 a great variety of subjects, though with but a faint manifes- 
 tation of a desire for justice. By Ch. 25-24, George III, 
 the King was empowered to name six commissioners for the 
 affairs of India, with power to superintend and control the 
 civil and military government of the East Indies. The details 
 of the government, however, were still left with the directors 
 of the East India Company. This system of government by 
 a corporation organized for profit had grown up and de- 
 veloped with the aid of the military power of Great Britain. 
 The profits of the company were derived partly from trade 
 and partly from taxation of the natives in various forms. 
 The great British Empire of the East was started by the 
 agents of a corporation, the primary purpose of which was 
 to make money. The exercise of political and governmental 
 powers grew as it was discovered that they could be wielded 
 profitably. By the act above mentioned the British govern- 
 ment assumed some powers of supervision, through the courts 
 as well as the commission, over the affairs of the natives and 
 the company. In the published statutes at large the acts of 
 the reign of Edward I, called the great law-giver, cover 258 
 pages: those of Elizabeth's reign of forty- five years 413 
 pages, while in the sixty years of George III thirty-seven 
 volumes, many of them of large size, were required to con- 
 tain the acts of Parliament. It might be thought that so 
 much legislation would result in radical changes of the sys- 
 tem of laws, but it was not so. A very large portion of the 
 space filled is taken up with tax bills, regulations of the 
 excise, duties on imports and exports, land, income and other 
 taxes, and directions as to the use of public moneys in re- 
 pairing roads, bridges, harbors, etc. There are acts in great 
 number designed to regulate, encourage or restrict various 
 lines of trade and manufacture which have been repealed, 
 renewed and amended to meet the changing views of Parlia- 
 ment or to favor the men or party in power at the time. 
 It may occasion surprise to find how much has been attempted 
 and how little accomplished by the many laws designed to 
 affect trade and manufacturers. Real improvement in the 
 laws came through the repeal of restrictive acts. Freedom in 
 
THE BRITISH EMPIRE 757 
 
 commercial enterprise has stimulated trade and industry far 
 more than any or all the laws designed to direct or encourage 
 them. During the reigns of George III and George IV 
 there was little regard paid by Parliament to the interests of 
 the toiling multitude. The landed and moneyed classes were 
 alone considered, though near the close of the reign of George 
 IV there were growing demands for an extension of the 
 elective franchise. The extreme selfishness and wanton 
 cruelty of the ruling class is well illustrated by 9 Geo. i ch. 
 22 and 31 George II, ch. 42, which made it a felony, pun- 
 ishable with death, to break down the mound of a fish pond 
 whereby any fish shall escape, or to cut down a cherry tree 
 in an orchard. The indolent, cruel and selfish aristocracy 
 did not hesitate to take the lives of the poor for so slight 
 an interference with the unmerited privileges, which the law 
 conferred on them by their exclusive license to fish and hunt 
 and their artificial claims to the ownership of the face of 
 the earth. 
 
 With the decay of the feudal system and the growth of 
 the power of Parliament came increased severity in the laws 
 relating to the punishment of crimes. In the early years 
 the death penalty was never inflicted by the public authority, 
 but only by the relatives of the murdered man in cases of 
 homicide. Coke mentions only seven capital felonies, homi- 
 cide, rape, burglary, arson, robbery, theft and mayhem. All 
 these were originally subject to benefit of clergy, which in 
 those times meant that the secular courts had no power to 
 punish churchmen, and the church did not inflict the death 
 penalty, but sought to purge and reform the offender. The 
 privileges of the clergy began to be first reduced in the time 
 of Henry VII, being taken away in cases of petty treason 
 committed in the murder of a master. Under Henry VIII they 
 were further restricted, and finally in 1827 by Sec. 6 Ch. 28-7- 
 and 8 George IV, benefit of clergy was abolished, and by 
 Sec. 7 the penalty was taken away, except in cases excluded 
 from benefit of clergy or made capital by some subsequent 
 act. Blackstone says (4 Com. 18) that, "among the va- 
 riety of actions which men are daily liable to commit, no 
 
758 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 less than one hundred and sixty have been declared by Act 
 of Parliament to be felonies without benefit of clergy." This 
 may possibly give an exaggerated idea of the number of 
 capital offenses, for many particular offenses were made capi- 
 tal by Act of Parliament, which might naturally have been 
 included under some general head. Ch. 27-9 George I, 
 known as the Black Act, provided that if any persons armed 
 or having their faces blacked or being otherwise disguised, 
 should appear in any forest, etc., or in any warren or place 
 where hares or rabbits were usually kept, or in any high 
 road, open heath, common or down, or should unlawfully or 
 wilfully hunt, wound, kill, destroy or steal any red or fal- 
 low deer, etc., they should be guilty of felony without benefit 
 of clergy. This statute Stephens, in his History of the Crim- 
 inal Law in England, says creates fifty-four capital offenses, 
 yet it cannot be regarded as doing more than make it a felony 
 to trespass on any game preserve. This act discloses very 
 pointedly the cruel severity of the gentry of England, who 
 to gratify their passion for slaughtering game made it a 
 deadly offense for a poor man, really in need of it for food, 
 to even go where he might get it, notwithstanding that by 
 nature one man has as much right to take game as another. 
 Most of the severe penal statutes were designed to protect 
 the king, the nobility and the great landowners in that to which 
 the law gave them an artificial claim. Treason, which was 
 merely denial or resistance of the claimed right to rule, was 
 most jealously ferreted out and cruelly punished. At the end 
 of the seventeenth century of the crimes designated as fel- 
 onies without benefit of clergy, there were high treason, 
 petty treason, piracy, murder, arson, burglary, housebreaking 
 and putting in fear, highway robbery, horse stealing, sheep 
 stealing of a value above is. stealing from a person of above 
 the value of is; rape and abduction with intent to marry. 
 The whole course of the legislation of the eighteenth cen- 
 tury tended to increase rather than diminish the severity of 
 punishments, and no other country prescribed the penalty of 
 death for so many petty offenses as Great Britain during that 
 time. It is a noticeable fact also that a very large part of the 
 
THE BRITISH EMPIRE 759 
 
 crimes are such as the unmerited privileges of the aristo- 
 tocracy invited. In acts passed in 1827, 1828 and 1830 the 
 death penalty v^as still prescribed for robbery by force or 
 threats to accuse of an infamous crime, sacrilege, burglary, 
 housebreaking and stealing or putting any person in the 
 house in fear, theft of £5 in a dv^elling, stealing horses, sheep 
 or cattle, arson, riotously demolishing houses, destroying 
 ships, exhibiting false signals, murder, attempts to murder by 
 poisoning, stabbing, shooting, etc., administering poison to 
 procure abortion, sodomy, rape, connection with a girl under 
 ten years old; forging the great seal, public securities, wills, 
 bills of exchange or promissory notes ; making false entries 
 in certain public books of account, and forging transfers of 
 stocks. This is a strange list of capital penalties to be inflicted 
 by a Christian nation in the nineteenth century. Since then it 
 is gratifying to note that the course of legislation has been 
 steadily in the direction of repealing these savage penalties, 
 until now only the crimes of treason, murder, piracy with 
 violence, and arson of dockyards or arsenals are punishable 
 with death. 
 
 The growing spirit of humanity was further evidenced by 
 the acts 3 and 4 William IV, ch. 73 and 5 and 6 William 
 IV, 4 ch. 45 abolishing slavery in the British colonies and 
 providing payment to the masters. Doubtless certain private 
 interests were promoted by the large expenditure of public 
 money in payment for the liberated slaves, but the general 
 purpose and effect of the acts were good. The slaves were 
 first converted into apprentices and liberated after a pre- 
 scribed term of service as such, not to extend beyond Aug. 
 I, 1840. Hours of labor were limited to firty-five in one 
 week. By ch. forty-five 2 William IV, many important re- 
 forms in the constitution of the House of Commons were 
 effected. Boroughs with very few inhabitants, which had 
 theretofore had representation, were deprived of it, and the 
 great manufacturing towns of Manchester, Leeds, Birming- 
 ham, Greenwich, Sheffield and others of importance, which 
 theretofore had been without representation, were accorded 
 two members each, and others of less importance one each. 
 
76o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 The elective franchise in the counties was extended to all 
 adult male freeholders, including copyholders having lands 
 of the clear yearly value of £io, and also to certain tenants 
 for years of lands yielding £io net above the rent reserved. In 
 the boroughs persons occupying as owners or tenants, houses 
 of the rental value of £io per year were allowed to vote for 
 members of Parliament. The overseers of the poor were 
 made registration officers and required to prepare lists of 
 voters in the respective counties and boroughs, which were 
 subject to revision by barristers named by the judges of the 
 King's Bench. The expenses of the polling booths, deputies 
 and clerks in charge of the election were required to be paid 
 by the candidates, a provision which would be deemed very 
 objectionable in the United States. In 1835 ^^ ^^t was 
 passed as Ch. 76-5 and 6 William IV, entitled "An act 
 to provide for the Regulation of Municipal Corporations in 
 England and Wales," by which a general system of municipal 
 organization in substantially all principal cities and towns 
 except London was substituted for the special charters under 
 which they had been governed theretofore. The franchise 
 for the election of municipal officers was extended to all adult 
 males, who should have occupied a house for the three pre- 
 ceding years and been rated and have paid rates for the relief 
 of the poor during such time. The municipal government 
 was placed under the control of a mayor, alderman and 
 councillors. The councillors were elected by the burgesses 
 by signed ballots, and from their number the aldermen were 
 chosen by the councillors. One-third of the councillors were 
 to be chosen annually and half the aldermen every three 
 years. The mayor, aldermen, and councillors constituted the 
 council, and the council chose a mayor annually. The election 
 of councillors took place in November, and in March two audi- 
 tors and two assessors were chosen. The council had super- 
 vision of the public property of the city and charge of police 
 affairs. Though the elective franchise was greatly extended, 
 a property qualification of £500 was required for members of 
 the council, and occupancy of land and payment of rates was 
 the basis of the qualification of voters. 
 
THE BRITISH EMPIRE 761 
 
 It would be hard to imagine a law more unjust in princi- 
 ple than that by which taxes were imposed on the importation 
 of food into a country usually requiring more than the home 
 product. The effect of such taxation is necessarily to raise 
 the price of all kinds of food so taxed, whether of domestic or 
 foreign production. As Parliament was dominated by the great 
 landowners, who were interested in keeping the price of grain 
 as high as possible, it had long been the policy of Great Britain 
 to collect a protective duty on imported grain. In 1846 after 
 a great contest at the elections over this system, resulting in 
 a majority favorable to its continuance, a famine in Ireland 
 and great scarcity of food in Great Britain caused the minis- 
 try to propose and carry through a repeal of the tax. The 
 justice and good policy of freedom in the purchase of food 
 has been so obvious and the good effects of this repeal so 
 generally appreciated, that Great Britain has steadily pursued 
 a policy of throwing off restrictions on trade ever since. The 
 Sepoy rebellion in India in 1857, which was suppressed with 
 much bloodshed and barbarity, led to the assumption by the 
 government of more direct rulership in Indi£ 
 
 In 1 86 1 by Ch. 67, 24 and 25 Vict, the government of 
 India was vested in the Governor General and a Council, con- 
 sisting of five ordinary members, three of whom were to be 
 appointed by the Secretary of State for India in Council with 
 the concurrence of a majority of the members present at the 
 meeting from persons who had been in the service in India 
 of the crown or company and crown for at least ten years, 
 and the remaining two by the Queen, one of whom should 
 be a Scotch barrister of five years standing, and the com- 
 mander-in-chief in India might be added by the Secretary of 
 State as an extraordinary member. When the council as- 
 sembled in the Presidencies of Fort St. George or Bombay, 
 the governor of the presidency became an extraordinary mem- 
 ber, and when in the other provinces having a Lieutenant 
 Governor, he also became an additional councillor for the pur- 
 pose of making laws. The Governor General was also vested 
 with power to appoint extraordinary members of the council 
 for the purpose only of making laws, not less than six nor 
 
762 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 more than twelve in number, one half at least of whom 
 should be non-official persons and hold for two years. The 
 Governor General was given power to fix the times and places 
 of meetings of the council and to make rules for the conduct 
 of business. He might assent to laws or refer them to the 
 crown, but no law took effect without the assent of the Gov- 
 ernor General or the Queen, and the Queen might disapprove 
 of a law assented to by him and annul it. The legislative 
 power so conferred was full and complete as to all matters 
 except those covered by certain acts of parliament. Similar 
 councils were provided for in the presidencies, to be presided 
 over by the governors. Laws enacted by them were subject 
 to the approval of the Governor General and might also be 
 annulled by the Queen. The laws so made were operative 
 only in the presidency for which enacted. In 1873 provision 
 was made for winding up the affairs of the East India Com- 
 pany by Ch. 17-36 Vict, and for payment of the stockholders, 
 whose stock was rated in the act as worth £200 for every 
 £100 face. In tjiis manner was terminated a most remarkable 
 form of combination of private interests and governmental 
 powers, and the government undertook the task of supervis- 
 ing the distribution among the stockholders of the proceeds 
 of the great private enterprise, which had resulted in sub- 
 jecting the vast empire of India with its hundreds of millions 
 of people to the crown of Great Britain. For some gener- 
 ations it has been the claim and especial pride of Englishmen, 
 that theirs was a government of laws, established by a repre- 
 sentative Parliament or immemorial custom and administered 
 by able and upright judges. Probably more power has been 
 exercised by the courts, and their influence has been more 
 general in England than elsewhere from remote times. The 
 common law of England, which can only be found authorita- 
 tively stated in the decisions of the courts, has been often 
 lauded, especially by the legal profession, and sometimes men- 
 tioned as the perfection of human reason. The courts have 
 enjoyed the profound respect of the people generally, and 
 the righteousness of their decisions has seldom been publicly 
 questioned. Certain it is that there until recent times, the 
 
/ 
 
 THE BRITISH EMPIRE 7^Z 
 
 people relied more on the courts for the enforcement of their 
 claims of right, and that questions of law were given more 
 consideration and weight than in the countries of continental 
 Europe. It cannot be denied that judicial functions have 
 been exercised by many able men in England for several cen- 
 turies, and that a desire to do justice has been often mani- 
 fested by them, but the genius of the • whole system has 
 required steady adherence to precedent and denied the judges 
 liberty to do justice in cases- where it has not been the custom 
 to allow it. The fundamental purpose in early times was the 
 enforcement of the privileges of the landed aristocracy, and 
 later on of the clergy also. Though at first the barons main- 
 tained their dominion over the people by force of arms under 
 a theory of ownership of the soil, and the clergy obtained, 
 their revenues partly through land tenure and partly through 
 enforced contributions, the courts, acting in accordance with 
 a fixed set of rules, were found convenient instruments for 
 holding the poor in subjection and settling disputes between 
 the privileged classes without bloodshed. The ideas on which 
 the ancient landed nobility based their ascendency still prevail, 
 so far as the theory of land titles is concerned, and the claims 
 of the clergy to compulsory support by the people are still 
 recognized in a modified form. The liberalizing influences, 
 which step by step have advanced moral standards, have come 
 mainly from the industrial classes and those engaged in legiti- 
 mate enterprises for gaining wealth. Nowhere else, except 
 perhaps in Holland, has there been such a general disposition 
 to make foreign investments and promote new enterprises for 
 profit. In the early explorations by sea all classes took part, 
 and ever since then there have always been opportunities for 
 men of ability in any social rank to gain wealth, and having 
 acquired it to receive protection in its possession from the 
 courts. Though using the most clumsy and inconvenient sys- 
 tem of money, weights and measures, the British nation has 
 always had a remarkable genius for computation of values and 
 profits, and as an aid to such computations to gather statistics 
 and information of all kinds. This propensity for gathering 
 information, coupled with adherence to precedent and a pro- 
 
764 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 found respect for everything British, has led to some pecuHar 
 results. The money center of the world has a barbarous, in- 
 convenient and uncouth system of accounts, using pounds, 
 shillings, pence and farthings to express values and sums of 
 money, and the greatest commercial nation on earth uses units 
 of measurements and quantities quite incomprehensible to 
 many people instead of the decimal metric system in use on 
 the continent. The country where courts were most regarded 
 and resorted to, for centuries had a system of courts and 
 methods of procedure in the disposition of causes so intricate 
 and complicated, that a suitor could seldom tell to what court 
 he should apply for relief nor, having chosen his court, could 
 he safely rely on the ability of his lawyer to follow intricate 
 legal forms and get to a decision of the case on its merits. 
 There were ecclesiastical courts, lay courts, local courts of 
 special limited and peculiar jurisdiction, admiralty, exchequer, 
 probate, bankruptcy and other courts dealing with special 
 subjects; then there was the great division into law and equity 
 with power in the latter, in a great line of cases, to step in 
 and deprive a suitor of his rights under the law, because other 
 rules called rules of equity conflicted with the law. Thus in 
 the early days a suit on a bond at law was always for the full 
 penalty, though the bond in terms provided that it should be 
 void on payment when due of a less sum which it was given 
 to secure, and the law courts always gave judgment for the 
 full penalty. But the chancellor, sitting as a court of equity, 
 would always enjoin the plaintiff from collecting more on 
 his judgment than the amount of money really due. Courts 
 of law could give no relief from mistakes in written contracts. 
 Courts of equity undertook to reform them in accordance 
 with the original purpose of the parties. The courts of law 
 for centuries paid more regard to form than to right. The 
 forms of pleadings, the choice of remedies and mode of pro- 
 cedure were stumbling blocks over which any suitor was 
 liable to fall. Following the rule that it is for the court to 
 decide only the exact question before it, the plaintiff fre- 
 quently failed to obtain relief because his attorney had chosen 
 the wrong form of action, but the court would not indicate the 
 
THE BRITISH EMPIRE 765 
 
 right one, and often a second suit would result similarly. 
 The choice of courts might lead to the same result, if the 
 wrong one was selected and he was forced to begin anew. 
 There was the court of ''piepoudre,'' dusty feet, held by the 
 steward of the person entitled to the tolls of a fair or market, 
 with jurisdiction only to decide causes arising from dealings 
 at that fair or market, a very summary court, which generally 
 decided causes on the very day, they arose. The court baron 
 was incident to every manor, held by the steward within the 
 manor, and dealt with the rights of tenants of copyhold 
 -estates. There was also a common law court bearing the 
 same name, held by the freeholders of the manor with the 
 steward as registrar, with jurisdiction over rights to lands 
 within the manor and some personal actions involving less 
 than forty shillings. The hundred court was similarly con- 
 stituted with similar jurisdiction over the hundred. The 
 -county court, presided over by the sheriff, had a more general 
 jurisdiction over minor causes and was much more frequently 
 resorted to. In early times it was a court of much importance, 
 presided over by the bishop and ealdorman, with the principal 
 men of the shire as judges. The court of Exchequer Chamber 
 was originally vested with jurisdiction over causes for the 
 collection of the king's revenues and looked after the reve- 
 nues of the crown, but it afterward came to exercise both 
 common law and equity jurisdiction in nearly all kinds of 
 causes. As a court of equity it was made up of the lord 
 treasurer, the chancellor of the exchequer, the chief baron and 
 three puisne barons. The treasurer and chancellor took no 
 part in the exercise of the common law jurisdiction of this 
 court. Its jurisdiction of causes between private persons was 
 based on the fiction, that the complainant was a debtor to the 
 king and his ability to pay was affected by the wrong of 
 which he complained. Superior in rank to all the foregoing 
 courts was the court of Common Pleas, sitting at Westminster 
 with general jurisdiction over common law actions between 
 private persons. Above this and highest of the common law 
 courts was that of King's Bench, composed in Blackstone's 
 time of a chief justice and three puisne justices, with general 
 
766 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 jurisdiction of all common law cases, civil and criminal, and 
 general supervision of all inferior courts and power to reverse 
 their judgments. The king himself sat in this court in early 
 times and was regarded as personally present by a legal fiction 
 in all later times. It had appellate jurisdiction by writ of 
 error, not only in causes arising in Great Britain, but also 
 from the court of King's Bench in Ireland. The High Court 
 of Chancery, presided over by the chancellor or lord keeper 
 of the great seal, the highest officer under the king, was one 
 of very extensive powers. It exercised common law powers 
 in a limited class of cases and was the office of justice from 
 which all original writs and commissions under the great seal 
 were issued. Its equity jurisdiction was much more extensive 
 and important than its common law powers. In early times 
 it is said that the chief judicial employment of the chancellor 
 was in devising new writs, to afford remedies where none 
 were afforded by the writs in use, but later by subpoena the 
 defendant, against whom complaint was made and equitable 
 relief sought, was required to appear before the chancellor 
 and the cause was determined by him. Blackstone gives the 
 principal credit for the establishment of the system of equity 
 practice to Heheage Finch, Earl of Nottingham, who became 
 chancellor in 1673. Above all these courts was the House of 
 Lords from which writs of error might issue to the Exchequer 
 Chamber, the King's Bench and the High Court of Chancery, 
 but which had no original jurisdiction. The great courts had 
 their permanent seats at London, but circuit courts were held 
 by the king's special commission in all parts of the kingdom 
 for the trial of civil and criminal causes by jury and the de- 
 termination of issues of fact. These courts were commonly 
 called courts of assize and nisi prius. Besides these were the 
 ecclesiastical, military and maritime courts and a great num- 
 ber of courts of special, local and limited jurisdiction, in the 
 cities and towns, at the universities and elsewhere, to describe 
 all of which would consume unnecessary space. 
 
 In 1873 a comprehensive reform of the whole system of 
 courts and procedure was undertaken by parliament. Ch. 66- 
 36 and 37 Vict, consolidated the old High Court of Chancery, 
 
THE BRITISH EMPIRE 7(>7 
 
 Court of King's Bench, Court of Common Pleas, Court of 
 Exchequer, High Court of Admiralty, Court of Probate, 
 Court for Divorce and Matrimonial Causes, and London Court 
 of Bankruptcy into one Supreme Court of Judicature in Eng- 
 land, divided into the High Court of Justice and the Court 
 of Appeal. The High Court of Justice is constituted of the 
 Lord Chancellor, Lord Chief Justice, the Master of the Rolls, 
 Chief Justice of the Common Pleas, Chief Baron of the Ex- 
 chequer, the Vice Chancellors, Judge of the Court of Probate 
 and of the Court of Divorce and Matrimonial Causes, the 
 puisne judges of the Courts of King's Bench and Common 
 Pleas, the Junior Barons of the Exchequer, and the Judge of 
 the High Court of Admiralty; except such of them as are 
 made ordinary judges of the Court of Appeal. Vacancies 
 afterward occurring are to be filled by appointment by the 
 crown from persons possessing the prescribed qualifications. 
 The Court of Appeal is constituted of five ex-officio judges 
 thereof, and so many ordinary judges not exceeding nine as 
 the crown may appoint. The ex-officio judges are the Chan- 
 cellor, Chief Justice, Master of the Rolls, Chief Justice of 
 the Common Pleas and Chief Baron of the Exchequer. The 
 judges hold office for life, subject to removal by the king on 
 address by both houses of Parliament. Judges are disqualified 
 from sitting in the House of Commons. The ordinary judges 
 are allowed salaries of £5,000 per year, and those of higher 
 rank larger sums. Three of the judges are allowed secre- 
 taries with salaries of £500 per annum and all are given two 
 clerks with salaries respectively of £400 and £200. 
 
 All the jurisdiction exercised by the various courts so con- 
 solidated and divers others named in the act is vested in the 
 Supreme Court of Judicature, and all the judges are author- 
 ized to administer law and equity in any cause coming before 
 them. Though the distinctions between the rulers of law and 
 of equity are still preserved, the courts are authorized to apply 
 them in any case and to administer both in the same action. 
 All the old, narrow, technical rules which occasioned so many 
 failures of justice were swept away, and a simple and com- 
 prehensive system established with modes of procedure de- 
 
768 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 signed to afford speedy remedies. Plain rules for the 
 distribution of business are laid down, with power in the 
 court to correct mistakes with reference to the division of the 
 court before which the cause is to be heard and to permit all 
 amendments calculated to promote justice. Appeals may be 
 taken from the High Court of Justice to the Court of Appeal. 
 In 1875 a further act was passed, Ch. 77-38 and 39 Vict., to 
 more fully carry into effect the reforms inaugurated by the 
 act of 1873. Some slight modifications of the number of 
 judges and constitution of the courts were made, and the 
 London Court of Bankruptcy was restored as a distinct court, 
 subject to appeal to the Court of Appeal. Provision was 
 made for regulating the holding of assizes and sessions for 
 the trials of issues of fact by Orders in Council and for the 
 regulation of various matters by rules of court to be sub- 
 mitted to parliament and subject to be annulled by it. The 
 Rules of Court appended to the act prescribe the practice to 
 be followed in the courts. Every action in the High Court 
 is commenced by summons, on which must be endorsed a 
 statement of the nature of the claim made in the most concise 
 and general terms and the address of the plaintiff's solicitor. 
 The summons may be issued out of any registry and the cause 
 assigned to any division of the court and to such judge by 
 name as the plaintiff may think fit, subject to the power of 
 the court to transfer it on motion to any other division. The 
 defendant is required to enter his appearance in eight days 
 after service of the summons, and, except in certain cases 
 provided for in the rules, the appearance must be entered in 
 London, and if so entered there the cause will proceed there. 
 If a defendant resides in the district from the registry of 
 which the summons issued, he shall appear in that district 
 registry. If no appearance is made by the defendant, final 
 judgment may be rendered against him. All persons in any 
 manner interested in the controversy may be made parties, 
 and great liberality is allowed in joining different causes of 
 action, subject to the power of the court to try different issues 
 separately where deemed best. After the appearance of the 
 defendant, unless he states that he does not require a state- 
 
THE BRITISH EMPIRE 7^9 
 
 ment of the complaint, the plaintiff must within the time 
 fixed by the rules deliver to the defendant his statement of 
 complaint and the relief demanded; the defendant then de- 
 livers to the plaintiff a statement of his defense, to which the 
 plaintiff may reply. Where questions of law are presented by 
 the facts stated in a pleading, the court may proceed to con- 
 t^ider and determine the law questions before hearing proof 
 as to the facts. All appeals to the Court of Appeal are by way 
 of rehearing, and no bill of exception is required or other pro- 
 ceeding in error in ancient form. The court on hearing the 
 appeal does not review the errors committed by the trial court, 
 but may allow amendments, hear further evidence, give any 
 judgent and make any order that ought to have been made 
 by the trial court. The original papers and the notes of evi- 
 dence taken at the former hearing may be used. The various 
 points of practice are most fully and clearly covered by the 
 rules, and to them are appended forms of the various writs 
 and pleadings to be used, framed in simple and pointed lan- 
 guage. After having had the most complex and in many 
 respects absurd and unreasonable system of practice in its 
 courts, England can now fairly claim to have the simplest, 
 most comprehensive and excellent system of courts and code 
 of practice of any country in the world. By Ch. 59-39 and 
 40 Vict, appeals are allowed from the Court of Appeal in 
 England and certain courts in Scotland and Ireland to the 
 House of Lords. No appeal can be determined in the House 
 of Lords unless there are present three of the following 
 persons : The Chancellor, the Lords of Appeal in Ordinary 
 and such Peers of Parliament as hold or have held high 
 judicial offices. The Queen was authorized to appoint two 
 Lords of Appeal in Ordinary with salaries of £6,000 per year. 
 The House of Lords was authorized to sit during any pro- 
 rogation of Parliament or dissolution if authorized by the 
 queen ^or the purpose of hearing causes. These acts were 
 followed by that of 55 and 56 Victoria Ch. 43, which estab- 
 lishes a uniform system of county courts and prescribes a 
 simple system of procedure therein. The Lord Chancellor is 
 authorized from time to time to appoint not exceeding sixty 
 
770 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 judges for these courts. Provision is made for the abolition 
 of manorial and many other inferior courts, and the jurisdic- 
 tion of most causes involving small sums is conferred on the 
 county courts. While the excellence of this code is so marked, 
 the fact should not be overlooked that the constitution of all 
 the courts still accords v^ith the aristocratic ideas which have 
 so long dominated in England. The unearned and unmerited 
 priviliges enjoyed by the nobility, the landed and moneyed 
 aristocracy, are not likely to be diminished by any action of 
 the courts. The judges are paid excessive salaries and thereby 
 led to believe in the appropriation of public moneys for the 
 benefit of the ruling class in unreasonable ways. The highest 
 judicial officers are always added to the ranks of the titled 
 nobility, and the final decision of all questions of law is still 
 vested in the House of Lords, which stands as the representa- 
 tive and beneficiary of the injustice of the governmental 
 system, and should be rated morally as an exponent of a mori- 
 bund system of oppression. It has less of the spirit of prog- 
 ress and of the sense of natural justice due from man to man 
 and from the state to its citizens than any other great repre- 
 sentative body in England. The evil of conferring this final 
 jurisdiction on a body wholly made up of persons accorded 
 special, and for the most part wholly unmerited privileges 
 and distinction, is not in practice nearly so great as might be 
 expected, for the causes are decided mainly by the trained 
 judges, who in matters relating to trade and commerce, on 
 which the prosperity of Great Britain rests, exhibit a most 
 enlightened sense of justice. 
 
 There is still another tribunal, unique in its composition 
 and functions, which was established by Ch. 41, 3 and 4 
 William IV, in 1833 for the determination of appeals from 
 India and the various colonies and dependencies of the British 
 Empire. It is styled "The Judicial Committee of the Privy 
 Council," and as first established was made up of the President 
 of the Privy Council, the Lord Chancellor and such other 
 members of the Privy Council as shall hold or have held the 
 office of Lord Keeper or First Commissioner of the Great 
 Seal, Chief Justice of the King's Bench, Master of the Rolls, 
 
THE BRITISH EMPIRE 771 
 
 Vice Chancellor of England, Lord Chief Justice of the Com- 
 mon Pleas, Lord Chief Baron of the Court of Exchequer, 
 Judge of the Prerogative Court of the Archbishop of Canter- 
 bur}^, Judge of the High Court of Admiralty, Chief judge of 
 the Court of Bankruptcy, and the King might appoint two 
 others. At least four of these were required to be present at 
 the hearing of a cause. By the Act passed in 1908, 8 Edw. 
 7, ch. 51, persons having held the office of Chief Justice of the 
 High Court of India and some others designated in the act, 
 being members of the Privy Council, were added to the list. 
 This tribunal has no jurisdiction of appeals from any domestic 
 tribunals, but only from the colonies and dependencies. Con- 
 troversies are decided by this tribunal in accordance with the 
 law of the place where they arose which is applicable to them, 
 whether it be the Code of Manu or the Koran in India, or the 
 Acts of the Canadian, Australian, New Zealand or other 
 colonial Parliament. The determination of the Committee is 
 put in the form of a report on the case but has all the force 
 and effect of a judgment, and Sec. 21 of the Act of 1833 
 provides for carrying it into execution. 
 
 Most of the leading nations of Europe and America have 
 recognized the duty of providing for the education of the 
 people as resting on the government. Though England has 
 long had universities of very high rank and many schools of 
 various degrees of usefulness, it has never established a com- 
 plete system of free schools. The elementary education act 
 of 1876 Ch. 79-39 and 40 Vict, makes it the duty of parents 
 to cause their children to be instructed in reading, writing and 
 arithmetic and provides for public assistance in the payment 
 of tuition to the amount of 3d. per week, where parents not 
 paupers are unable to pay. Excuses for failure to so educate 
 are defined by statute, among which is one that there is no 
 public school within two miles. By subsequent acts many 
 further improvements have been made. From an early period 
 England has been perhaps as well supplied with private schools 
 as any country, and the education of children has always been 
 looked on as mainly a private concern of parents. People of 
 wealth have generally paid much attention to the instruction 
 
772 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of their own children, but the pubhc poHcy, which provides 
 instruction for all at public expense and enforces attendance^ 
 has never been fully adopted. Still the improvement in late 
 years has been very marked, and the United Kingdom of 
 Great Britain and Ireland now ranks in average attendance at 
 school below only Scandinavia, Germany, Switzerland and the 
 United States. Ch. 87-38 and 39 Vict, entitled ''An act to 
 simplify Titles and facilitate the Transfer of Land in Eng- 
 land," provides for the registration of land titles and all 
 interests and encumbrances on freehold lands and for the 
 determination by a registrar as to the ownership of lands. 
 This is not a recording act, in the sense in which the term is 
 used in America, but makes provision for a record showing 
 the present ownership of the land and the encumbrances 
 thereon. It is a very radical change from the ancient system 
 of transfers by verbose instruments, but aside from affording 
 evidence of title it makes no change in the land laws of the 
 kingdom. Though intended to simplify, the peculiarities of 
 English land tenure make necessary elaborate and rather com- 
 plex and confusing regulations, including an appeal to the 
 courts for the determination of disputed titles. No change 
 has been made in the rules of inheritance or the theory of 
 land tenure. Ch. 36-38 and 39 Vict. Artizans and- Laborers 
 Dwellings Act, 1875, makes provision for the improvement 
 of unsanitary districts in the cities in England, and Ch. 49 
 of same session in Scotland also, in accordance with a plan 
 proposed by the local authorities and ratified by Parliament: 
 for condemnation of the grounds, where the owners do not con- 
 sent to make the improvement, and for the prosecution of the 
 work at public expense. The details of each improvement are 
 to be worked out by the local authority according to the needs 
 of the particular district, no general system being attempted. 
 The general purpose of the act is a most excellent one, and 
 a most difficult problem has been dealt with in a manner calcu- 
 lated to, and which in fact has already resulted in much 
 alleviation of the miseries of the dwellers in overcrowded 
 sections of the great cities. 
 
 In its institutions for higher education Great Britain is even 
 
THE BRITISH EMPIRE m 
 
 farther behind the other leading nations, having but eleven 
 universities v^ith 13,400 students, to twenty-one in Germany 
 with 26,680 students and three hundred and sixty in the 
 United States with 60,000 students. In no other Christian 
 country is wealth so unequally distributed. The late Queen 
 was granted an income of £385,000 besides the revenues of 
 the duchy of Lancaster of £50,000 per year, and other mem- 
 bers of the royal family received £252,000, in return for which 
 no valuable public service was required. These expenditures 
 are merely to maintain the idea of united authority and the 
 display of royalty. Mulhall states the incomes of the people 
 as follows: Gentry 222,000 famihes with average incomes 
 of £1,500, amounting annually to £333,000,000. Middle, 
 604,000 families with an average income of £400. Trades 
 people 1,220,000 families with average incomes of £200 and 
 working people 4,474,000 with incomes of £97 per year. Be- 
 low these there were in 1889, 1,015,000 paupers and 25,100 
 criminals charged on the public. Though this showing is an 
 exceedingly strong impeachment of the general system pre- 
 vailing, there has been a marked improvement in the condi- 
 tion of the working classes during the last century. The last 
 half of the century has been a period of great moral progress 
 and many . admirable reforms. Popular representation is no 
 longer altogether mythical. The election laws go into many 
 elaborate details but speaking generally the elective franchise 
 for members of the House of Commons is now extended to 
 freeholders owning property of the clear rental value of 40s.. 
 per year and householders, and lodgers paying an annual rent 
 of £10 and to some other householders and lodgers who pay 
 taxes, and the voting is by secret ballot. As we haye seen 
 the school system has been greatly improved, and while in 
 1830 at the time of the establishment of the Board of Educa- 
 tion they were allowed but £30,000 to expend on schools, the 
 expenditures of 1906 are given at £22,000,000. 
 
 Reference is often made to the British constitution, and 
 judging from recent history no country has a more firmly 
 settled form of government, yet there is in fact no written 
 constitution, and the limitations on the powers of the king, 
 
774 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the Parliament and the officials exercising authority under 
 them are nowhere clearly and authoritatively defined. Though 
 the king now is generally regarded as a mere symbol of 
 authority in fact exercised by the leaders of the party having 
 a majority in the House of Commons, his ancient prerogatives 
 have never been formally annulled. His assent is necessary 
 to every act of Parliament, he is the fountain of honor and 
 vested with power to appoint to the great offices. It is through 
 his general sovereignty that the theory of unity of the vast 
 colonial empire is maintained. A king, disposed to rule in 
 fact, would have ample basis of law for the exercise of his 
 authority. The marked peculiarity of the British government, 
 however, is that this very indefiniteness in its constitution ad- 
 mits of the adaptation of the governmental system to the 
 peculiar conditions prevailing in different parts of the empire. 
 The United Kingdom is ruled in accordance with the laws 
 •enacted by Parliament, and generally legislation is moulded 
 by the elective branch, the House of Commons. The refusal 
 of the House of Lords to assent to tax bills and other legis- 
 lation passed by the Commons occasioned the Parliament Act 
 of 191 1 below mentioned. In no recent instance has the king 
 refused his concurrence. In practice the Ministry, represent- 
 ing the majority party of the Commons, introduces the im- 
 portant bills as government measures, and the defeat of such 
 measures is usually followed by the resignation of the ministry 
 thus left without the support of Parliament. The nominal 
 head of the whole empire is the king, the actual head is the 
 cabinet, which may be made up of the First Lord of the 
 Treasury (Prime Minister), the Lord Chancellor (President 
 of the House of Lords), the Chancellor of the exchequer, the 
 Lord President of the Council, and the Secretaries of State 
 for the following departments, Home, Foreign Affairs, Col- 
 onies, War, and India, the first Lord of the Admiralty, the 
 President of the Board of Trade, the President of the Local 
 Government Board, the Postmaster General, the first Commis- 
 sioner of Works, Vice-President of the Council of Education, 
 the Chief Secretary of the Lord Lieutenant of Ireland, the 
 Secretary for Scotland and the Chancellor of the Duchy of 
 
THE BRITISH EMPIRE 775 
 
 Lancaster. The constitution of the cabinet has never been 
 regulated by any act of Parhament, and it has varied in re- 
 cent years in the number of persons included in it, the first 
 nine being nearly always included and one or more of the 
 others often omitted. In theory and historical continuity these 
 are the counsellors and advisers of the king, chosen by him 
 to assist in the government of the kingdom; in fact they are 
 the ruling power, not only at home, but also in those parts of 
 the empire ruled from England. They lead the majority in 
 Parliament and in the most essential particulars dictate the 
 legislation. They are inferior to the House of Commons only 
 from the fact that they are at all times dependent on its sup- 
 port. A vote of want of confidence in the ministry or the 
 defeat of a government measure necessitates the retirement 
 of the persons filling the cabinet positions and the choice of 
 others having the confidence of the House. The number of 
 members of the House of Lords fluctuates, being 515 in 1898, 
 including a varying number of princes of the blood royal, two 
 archbishops, twenty-four bishops, sixteen Scottish peers, 
 elected for each parliament by the peers of Scotland, twenty- 
 eight Irish Peers elected for life, and the balance peers of the 
 United Kingdom. The House of Commons then had 670 
 members elected from the constituent countries as follows: 
 England 465, Wales thirty, Scotland seventy-two, and Ireland 
 103. This gives to England a clear majority over all, and no 
 measure can pass without English support. 
 
 Repeated refusals of the House of Lords to concur in the 
 passage of acts sent up from the House of Commons after 
 popular approval of the acts had been given through dissolu- 
 tion and election of new members of the House, led to an 
 important change in the constitution in 191 1. The Parliament 
 Act, I Geo. V. ch. 13, makes provision for regulating the 
 relations between the two Houses of Parliament. The Pre- 
 amble states that it is intended to substitute for the House 
 of Lords a Second Chamber constituted on a popular, instead 
 of an hereditary, basis, but that such substitution cannot be 
 immediately brought into operation; that provision will here- 
 after require to be made in a measure effecting such substitu- 
 
^^(i evolution of governments and laws 
 
 tion for limiting and defining the powers of such Second 
 Chamber, but that it is expedient to make such provision as 
 appears in the Act for restricting the existing powers of the 
 House of Lords. 
 
 If a money bill which has been passed by the House of 
 Commons and sent up to the House of Lords at least one 
 month before the end of the session, is not passed by the 
 House of Lords without amendment within one month after 
 it is so sent up, it shall unless the House of Commons direct 
 to the contrary, be presented to the Sovereign and become an 
 Act of Parliament on receiving the Royal Assent, notwith- 
 standing that the House of Lords has not consented to it. 
 The act defines what are money bills and provides for a cer- 
 tificate by the Speaker of the House which is conclusive of 
 the character of the bill. 
 
 If a public bill (other than a money bill or a bill extending 
 the maximum duration of Parliament beyond five years) is 
 passed by the House of Commons in three successive sessions 
 (whether of the same Parliament or not) and, having been 
 sent up to the House of Lords at least one month before the 
 end of the session, is rejected by the House of Lords in each 
 of those sessions, it shall, on its rejection for the third time, 
 unless the House of Commons direct to the contrary, be pre- 
 sented to the Sovereign and become an Act of Parliament on 
 receiving the Royal Assent, notwithstanding that the House 
 of Lords has not consented to it. This provision does not 
 take effect unless two years elapse between the date of the 
 second reading in the first of the sessions of the bill in the 
 House of Commons and the date on which it passes the House 
 of Commons on the third of those sessions. 
 
 A bill is rejected by the House of Lords if it is not passed 
 by that House either without amendment, or with such amend- 
 ments only as may be agreed to by both Houses. The House 
 of Commons may on the passage of a bill through the House 
 in the second or third session suggest any further amendments 
 without inserting them in the bill. Any such suggested 
 amendments are to be considered by the House of Lords, and, 
 if agreed to by that House, are treated as amendments made 
 
THE BRITISH EMPIRE 777 
 
 by the House of Lords and agreed to by the House of Com- 
 mons; but the exercise of this power by the House of Com- 
 mons does not affect the operation of the section in the event 
 of the bill being rejected by the House of Lords. 
 
 Any certificate given by the Speaker is conclusive and can- 
 not be questioned in any court of law. 
 
 The territories ruled by Great Britain may be divided gen- 
 erally into I. Those having representative governments with 
 ministers responsible to popular bodies, including Canada, 
 Newfoundland, Queensland, New South Wales, Victoria, 
 South Australia, West Australia, Tasmania, New Zealand, 
 and Cape Colony. 2. Those having representative govern- 
 ments but subject to veto on their legislation by the home 
 government and to the appointment of officials by the crown, 
 including Isle of Man, Channel Islands, Malta, Cyprus, Cey- 
 lon, Mauritus, Bermudas, West Indian Islands, British Guiana. 
 3. Crown colonies, ruled by the home government, Gibraltar, 
 India, Aden, Perim, Straits Settlements, Hong Kong, African 
 possessions other than South Africa, British Honduras, New 
 Guinea, Fiji Islands and Faulkland Islands. Besides these 
 there are various districts over which Great Britain assumes 
 a protectorate, without having instituted any settled govern- 
 ment, including Borneo and much of Africa. Since the loss 
 of the American colonies in 1776 Great Britain has pursued 
 a most wise and liberal policy toward colonies settled by 
 British and other European emigrants in distant parts of the 
 world. Though there is some diversity in the relation of 
 the colonies of the first class above named to the home gov- 
 ernment, they are generally accorded as much liberty of local 
 legislation as the Parliament of the United Kingdom enjoys 
 at home. The government of each of the colonies of all classes 
 has at its head a governor general, appointed from England. 
 In Canada there is a senate made up of members named by 
 the Governor General in Council and an elective house. There 
 IS a marked similarity in the legislation to that of England, 
 but full liberty is accorded the Canadians to regulate their 
 local affairs as they please. Even greater freedom is allowed 
 the more distant colonies in Australia and New Zealand, and 
 
778 
 
 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the last named country is now looked upon as the one having 
 the most socialistic schemes in practical operation of any 
 country in the world. Not only are its railroads, telegraphs 
 and telephones owned by the state, and its express business 
 carried on by it as in most European countries, but it also has 
 public life insurance and a system of compulsory arbitration 
 of disputes between employers and employees, a land policy 
 calculated to assist the poor to acquire homes, provisions for 
 securing employment to all, excellent civil service rules, and 
 many other humane enactments designed to better the con- 
 dition of the working class. 
 
 Australia, divided into various districts, is equally free to 
 do as it pleases, and to it we owe the first draft of the law 
 providing for an official ballot. No other government is so 
 free to deal with all governmental problems, unhampered by 
 either constitutional restrictions or abstract theories, as Great 
 Britain. Most despotic governments fear to allow anything 
 like the expression of popular will or local freedom of 
 political action, yet under this monarchy the most radical re- 
 forms are permitted in the distant colonies by local repre- 
 sentative assemblies, without any hindrance whatever from 
 the home government. The United Kingdom is itself a 
 strange combination of advanced social organization and 
 mediaeval injustice. A few persons monopolize the land,, 
 which is mostly held in great estates, though England is one 
 of the most densely peopled countries in the world. Miilhall 
 gives the size and ownership of estates of over one acre as 
 follows : 
 
 Acres 
 
 Number 
 
 
 Annual 
 
 in Holding 
 
 of Owners 
 England 
 
 Acres Owned 
 
 Rental 
 
 Under 50 
 
 194,620 
 
 2,230,000 
 
 £12,950,000 
 
 50 to 100 
 
 25,840 
 
 1,790,000 
 
 4,300,00a 
 
 100 to 500 
 
 32,320 
 
 6,830,000 
 
 13,680,000 
 
 Over 500 
 
 10,070 
 
 22,010,000 
 
 39,310,000 
 
THE BRITISH EMPIRE 
 
 779 
 
 
 Scotland 
 
 
 
 Under 50 
 
 12,940 
 
 110,000 
 
 2,270,000 
 
 50 to 100 
 
 1,210 
 
 90,000 
 
 380,000 
 
 100 to 500 
 
 2,370 
 
 560,000 
 
 1 ,680,000 
 
 Over 500 
 
 2,705 
 Ireland 
 
 18,160,000 
 
 8,570,000 
 
 Under 50 
 
 14,600 
 
 224,000 
 
 980,000 
 
 50 to 100 
 
 3,500 
 
 250,000 
 
 310,000 
 
 100 to 500 
 
 8,010 
 
 1,956,000 
 
 1,770,000 
 
 Over 500 
 
 6,500 
 
 17,720,000 
 
 8,990,000 
 
 From this it appears that of the lands held in tracts of such 
 size as to be used as farms in England only 12.04 P^r cent 
 is held in tracts of 100 acres or less, while 66.08 per cent is 
 held by great landowners in tracts of over 500 acres, averag- 
 ing 2,185 acres each. In Ireland only 2.3 per cent is owned 
 in tracts of 100, acres or less, while 88 per cent is held in 
 tracts of over 500 acres averaging 2,726 acres each. In Scot- 
 land but I.I per cent is in farms of 100 acres or under and 
 96 per cent in those with over 500 acres, averaging 6,713 
 acres. In England some large holdings have been purchased 
 by successful merchants, manufacturers and others, who have 
 acquired wealth by their own efforts, but most of them 
 throughout the United Kingdom are survivals of the feudal 
 system and based on kingly favor or successful private wars. 
 The large holdings in Ireland mostly date from the time of 
 William III, when the estates of the Irish Catholics were par- 
 celled out to English favorites. In Scotland the great lords 
 still hold the land as the heirs of their feudal ancestors. The 
 average size of landed estates in the leading countries is given 
 by Mulhall as follows: 
 
 France 
 
 32 
 
 acres 
 
 
 . 
 
 Germany 
 
 Z7 
 
 a 
 
 Belgium 
 
 18 acres 
 
 Russia 
 
 31 
 
 n 
 
 Sweden 
 
 300 " 
 
 Austria 
 
 20 
 
 ti 
 
 Norway 
 
 200 " 
 
 Italy 
 
 36 
 
 (( 
 
 Denmark 
 
 115 " 
 
 Spain 
 
 95 
 
 (( 
 
 U. S. 
 
 134 " 
 
 Holland 
 
 45 
 
 it 
 
 Great Britain 
 
 390 " 
 
78o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 There is no fair approximation to justice in its distribution 
 of the face of the earth, in its general system of land tenure, 
 or in its theory of the descent and distribution of property. 
 How then does it come that England has been so much 
 praised for the Hberality of its laws and the freedom of its 
 people? First, England from an early day became the most 
 tolerant of ideas and indulged the greatest liberty of speech. 
 It took the lead in searching out the true sources of the 
 wealth of distant lands and in securing to itself a share of 
 it. It has from an early day indulged and encouraged its 
 people in adventure, and was among the first to fully appre- 
 ciate the true principles relating to the exchange of products 
 and the vast benefits of commerce. Having opened its ports 
 to all the world it has became its central market. No people 
 understand better than they, that commerce is an exchange 
 of surplus products, which would go to utter waste if left in 
 the hands of the producers, so that the transfer from the 
 producer who has no use for them to the consumer who does 
 need them is a clear saving of the whole value. England 
 owes its greatness, not to its mediaeval land tenure, but to the 
 freedom of its people to engage in manufacturing and com- 
 mercial pursuits. Though its school system has been so defi- 
 cient, its vast navy and merchant marine and its remote 
 trading colonies have from an early day furnished schools of 
 practical instruction of far greater economic value than the 
 monkish schools of the continent, where dead languages and 
 dead theology were taught. No other people have had such 
 a genius for statistics, for gathering information useful to 
 the merchant, the manufacturer, and the seaman. Charts of 
 all the seas, maps of all the lands, and useful information 
 about all the various peoples of the earth and the countries 
 in which they live, have been industriously gathered, printed 
 and distributed among those who could profit from them. 
 This is not merely an efficient system of practical education, 
 but it is the path of progress and improvement. No other 
 government is so closely allied with the business enterprises 
 of its people. In the early days these alliances were mainly to 
 aid favorites of the crown with trading monopolies, and 
 
THE BRITISH EMPIRE 781 
 
 reached their culmination in the time of EHzabeth, when mo- 
 nopoHes had become so numerous and trade a matter of so 
 much concern that pubHc attention was attracted to it. It was 
 perceived that the general public suffered from all these mo- 
 nopolies, and that each monopolist paid tribute to each other 
 monopolist. The last to yield their advantage were the great 
 landowners, who sought to keep up the price of bread by pro- 
 hibiting importations of grain, but famine came to enforce 
 the demands of reason and justice, and trade monopoly was 
 abolished so far as it could be done by opening the ports of 
 the country freely to all who had goods to sell. The system 
 of rulership by political parties has led to the steady growth 
 of a public conscience. Criticisms of the conduct of the op- 
 posite party have brought to the attention of the country the 
 moral standards and tests by which the actions of men are to 
 be measured, and the English public opinion of to-day is far 
 more enlightened and humane than that of a century ago. 
 Moral standards though better observed are not yet accepted 
 as guides to the conduct of public officials. The lower stand- 
 ard of profit is the one most followed. The party in power 
 always seeks to further what are called British interests. Any 
 combination of persons or interests sufficient in numbers or 
 wealth to attract attention can ordinarily rely on the govern- 
 ment to give it aid and protection. The government has from 
 an early day attached to itself, not merely the great land- 
 owners, but also those having money to invest, and has in 
 many ways encouraged money saving and investment in public 
 or semi-public stocks and securities. The East India Company 
 and the Bank of England are instances of a kind of partner- 
 ship between the government and certain of its citizens. In 
 the case of the first named company loans were made to the 
 government in return for commercial and political favors and 
 assistance. In the case of the Bank each aids the other in its 
 monetary affairs, the Bank being the public depository and 
 financial agent of the government as well as a great banking 
 concern dealing with the public. But it is not in such institu- 
 tions, which are common to other countries, that the peculiar 
 bent of the British government is manifested. It has the great- 
 
782 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 est navy of any nation on earth and pursues a general policy of 
 advancing the commercial interests of its people in distant 
 lands and among people living in a low social state by force 
 of arms. It is frequently at war with some tribe or nation 
 in som.e part of the earth to aid its merchants and capitalists 
 in their enterprises. It seeks not merely political supremacy 
 and revenues from the taxation of industrious people, such as 
 those of India, but the more fruitful sources of revenue based 
 on theories of property rights. Since the overthrow of Na- 
 poleon Great Britain has not engaged single handed in war 
 with any great European nation. In the Crimean War most 
 of the troops were furnished by her allies. Her armies have 
 been employed in China, India, Africa and the islands of the 
 seas, with a view to the profit of her merchants or investors. 
 The elasticity of the British constitution is such that the 
 cabinet, the actual ruling force, can be enlarged or contracted 
 as may be found convenient in order to include recognized 
 leaders of the majority in the House of Commons without 
 taking in any objectionable person; colonies of Englishmen 
 accustomed to take part in governmental affairs can be left 
 to govern themselves, and the Asiatic multitude in India can 
 be ruled after the manner of Oriental despots, without any 
 representation in the government. The Governor General of 
 India with his council is, so far as the people of India are 
 concerned, the viceroy of the King of England with unlimited 
 powers both of legislation and administration. The only 
 checks on his authority are those imposed by the home gov- 
 ernment. The people of India have none. The Governor 
 General in fact exercises very arbitrary powers, and the people 
 of India are heavily burdened with taxation for people so 
 poor. They support a great number of British officials at very 
 high salaries with very little advantage from their presence. 
 The only influence tending strongly to mitigate the arbitrary 
 powers wielded by the officials are their education to respect 
 the rights of others and public sentiment in England, which 
 would condemn anything like barbarous treatment of the 
 people. While the Governor General in council, subject to the 
 approval of the home government, has full legislative power. 
 
I 
 
 THE BRITISH EMPIRE 783 
 
 the system of laws by which the people are governed and the 
 rules by which causes are decided in the courts are found in 
 the ancient code of Manu, as modified by local influences; 
 the Koran for Mohammadans, and local customs among tribes 
 that do not accept either the Code of Manu or the Koran. 
 The system of castes, which has so long prevailed and which 
 rests on these ancient laws, affords a very convenient basis for 
 the super-imposition of a military despotism. By taking the 
 military caste into the army under pay of the British rulers 
 no class is left with any genius for the organization of an 
 opposing force. By shifting these troops from their native 
 provinces to those in which they are strangers their fidelity 
 is secured. Mohammedan troops can be relied on in Brah- 
 man districts and vice versa. In one particular at least Brit- 
 ish rule is beneficial; the aids to commerce are introduced 
 more rapidly than they would have been. Railways and tele- 
 graphs, postal facilities, harbor improvements and the like 
 have improved the means of communication with other coun- 
 tries and and between different parts of India. The revenue 
 derived from land tax, railways, opium, salt tax, post office, 
 irrigation and sundry sources in 1906-7 was £73,144,600; 
 expenditures £71,555,200. The purposes for which this 
 money is used are summarized as follows : 
 
 Debt, Interest on £8,405,000 
 
 Army 21,586,100 
 
 Railways 10,676,200 
 
 Irrigation 2,736,800 
 
 Civil Works 4,358,700 
 
 Sundries 23,792,400 
 
 The advantages gained by Great Britain from sovereignty 
 over India are not expressed by any direct contribution to 
 the home treasury by way of taxation, but by the many 
 ways in which British subjects are enriched through the ad- 
 ministration of the government in India and profits of its 
 commerce. It may be observed that no part of the money 
 collected by the government is expended for the education 
 of the natives. No school system has been established to 
 
784 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 disseminate European ideas and information, but the native 
 teachers are left to teach the code of Manu and the Brahman, 
 Buddhist and Mohammedan doctrines, leaving to Christian 
 missionaries the difficult task of demonstrating the super- 
 iority of a religion of peace, coming from a conquering 
 nation ruling by force of arms. In some parts of India and 
 in other portions of the globe, where the direct exercise of 
 the governing power through British officials is not yet ex- 
 pedient, native rulers are utilized, and a protectorate is es- 
 tablished over them, through which commercial advantages 
 are secured without full responsibility for maintaining order. 
 In all its operations the British government is an intensely 
 practical one, counting the money cost of everything and the 
 profits likely to accrue to private citizens as well as the public 
 treasury. In its legislation the British parliament wisely 
 abstains from minute regulations of all administrative mat- 
 ters, leaving details to be worked out by those entrusted with 
 the undertaking in accordance with the general plan formu- 
 lated by Parliament. The new code of procedure in the 
 courts was prepared by the judges and merely approved by 
 parliament. The inability of a great representative body like 
 the House of Commons to deal with the details of matters 
 requiring long continued special study and exceptional oppor- 
 tunities for obtaining information is there better appreciated 
 than in most legislative bodies. In considering the causes 
 which have given to Great Britain the leading position it now 
 holds, the encouragement of all sorts of voluntary organi- 
 zations by the people for useful purposes must not be 
 overlooked. Not only have corporations organized to carry 
 forward great commercial enterprises and manufacturing 
 schemes been permitted and often greatly aided by the govern- 
 ment, but in recent years cooperative societies laboring men's 
 organizations and friendly societies of all sorts, designed to 
 bring about more just conditions and aid the poorer classes 
 in their struggles for existence have been permitted and 
 general laws passed granting them corporate powers. These 
 societies have not only accomplished much material good for 
 their members, but have also exercised a most salutary influ- 
 
THE BRITISH EMPIRE 785 
 
 ence on public sentiment. To the various labor organizations 
 is largely due the improvement in the conditions of the toiling 
 millions and the growing sense of public accountability for 
 unjust conditions. Notwithstanding the great activity of the 
 British parliament in law making, and that 152 volumes are 
 required to contain the enactments which have been pre- 
 served, but a very small part of the law administered by the 
 courts is to be found in any act of Parliament. Like the 
 British constitution the common law of England is unwritten. 
 For authoritative expression of it the student must go to the 
 reported decisions of the courts. In earlier times the text 
 writers, Littleton, Coke, Blackstone, Chitty and others were 
 much consulted and relied on, but, with the increased volume 
 of business in the courts and the rapid multipHcation of re- 
 ports of decisions, lawyers now rely almost exclusively on the 
 opinions of the higher courts for the exact rule in any case. 
 Of these reports there are thousands of volumes and many 
 new ones are coming out each year. 
 
 Note: For all matters of legislation I have consulted and 
 relied on the published Statutes at Large. References to par- 
 ticular Acts of Parliament are made in the text. 
 
 For matters of history the works of Hume, Burke, Gold- 
 smith, Macaulay, Lingard, Hodgkin, Holdsworth, and the 
 Encyclopaedia Britannica have been consulted. 
 
 For Statistics 
 
 Mulhall : Dictionary of Statistics. 
 U. S. Statistical Abstract. 
 Encyclopaedia Britannica. 
 
CHAPTER XXV 
 
 United States 
 
 The first voyages of discovery by Englishmen to America 
 were undertaken by private adventurers, rather than by the 
 government, and the first settlements were similarly effected. 
 It was nearly a hundred years after Columbus made his dis- 
 covery till the English made any well defined effort to gain a 
 foothold on the American continent. In 1584 Queen Eliza- 
 beth granted to Walter Raleigh a charter "to discover, search, 
 find out and view such remote heathen and barbarous lands, 
 countries, and territories not inhabited by Christian people as 
 to him his heirs and assigns, and to every and any of them shall 
 seeme good, and the same to have holde, occupie and enjoy 
 to him, his heirs and assigns for ever, . . . and the said 
 Walter Raleigh, his heirs and assigns, and all such as from 
 time to time by license of us our heirs and successors shall 
 goe or travaile thither to inhabite or remaine, there to build 
 and fortifie, at the discretion of the said Walter Raleigh, his 
 heirs and assigns, the statutes or acte of Parliament made 
 against fugitives, or against such as shall depart, remaine, 
 or continue out of our realme of England without licence, 
 or any other statute, acte, lawe, or any ordinance whatsoever 
 to the contrary in any wise notwithstanding." License was 
 given to all subjects to join in the enterprise and to take their 
 goods with them. Raleigh was given leave to organize forces 
 and fight and expel any one who might attempt to interfere 
 with his possession, and to set up a government in the country 
 occupied, including all the lands within 200 leagues of the 
 settlements made by him, governing as nearly as may be 
 in accordance with the laws of England. The only right 
 reserved was that of sovereignty and one-fifth the gold and 
 silver ore produced. The effect of this charter was to grant 
 to Raleigh and such British subjects as might choose to go 
 
 786 
 
UNITED STATES 787 
 
 with him, the right to estabhsh a colony in any country, not 
 inhabited by Europeans, which they could find, take and hold. 
 Under this charter five voyages to America were made and 
 the first colony was landed on Roanoke Island, Virginia, in 
 1585, but soon abandoned it and returned to England. In 
 1587 a second colony arrived at Roanoke, where it was left 
 to make its way as best it could during the war between 
 England and Spain. Three years later, when English ships 
 again visited Roanoke, the colony had wholly disappeared. 
 No permanent settlement was effected under Raleigh's charter. 
 In 1606 James I granted a charter to Sir Thomas Gates, 
 and seven other persons by name, and such others (not 
 named), as should be joined unto them to establish two col- 
 onies in Virginia, the first colony by Gates, Somers, Hackluit, 
 Wingfield and other adventurers of and for London, to 
 settle between latitude thirty-four degrees and forty-one de- 
 grees, with territor}^ extending along the coast for fifty miles 
 each way from their first settlement and 100 miles inland, 
 and the second colony, by Hanham, Gilbert, Parker and Pop- 
 ham -of Plymouth, for a district of equal size with the first, 
 between latitude thirty-eight degrees and forty-five degrees, 
 and the first settlements to be not less than 100 miles from 
 any prior settlement. The charter provided that each colony 
 should have a council of thirteen members to be appointed 
 and govern the colony in such manner as the king should 
 direct. Another council of thirteen in England was provided 
 for, to have the "superior managing and direction" of these 
 colonies and others that might be established between latitude 
 thirty- four degrees and forty-five degrees. The grants to 
 these colonies were buttressed with a provision that no grant 
 should be made to others of lands behind their tracts without 
 the express license or consent of the council of the colony! 
 Leave was granted to all British subjects to emigrate to the 
 colonies with their goods and arms, and to make war on 
 anyone attempting to interfere with their possessions. Pat- 
 ents for the lands to such persons as the council of the colony 
 or the majority of them might nominate, to be issued under 
 the great seal, were promised. "To be holden of us our Heirs 
 
788 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and Successors as of our Manor of East Greenwich in the 
 county of Kent, in free and common Soccage only and not in 
 Capite." 
 
 The London company proceeded at once to organize an 
 expedition and in the spring of 1607 the first permanent 
 Enghsh settlement was made at Jamestown on the James 
 River in Virginia by a colony of 105 men under Capt. John 
 Smith. The following winter 120 men were added and in 
 the fall of 1608, sixty-eight more, accompanied by two wo- 
 men, who came not as settlers but as visitors. 
 
 In 1609 a second charter was granted by which a great 
 number of persons by name and many companies of Grocers, 
 Tailors, Mercers, etc., were incorporated under the name of 
 *'The Treasurer and Company of Adventurers and Planters 
 of the City of London for the first Colony in Virginia," 
 and given all the rights before conferred on the first colony 
 under the prior charter with a more extended territory run- 
 ning 200 miles each way up and down the coast from Point 
 Comfort. The council in the colony was done away with, 
 and a much more numerous council in England was named 
 in the charter and given power to appoint a governor and 
 such other officers as they might see fit for the government of 
 the colony. The power to divide and convey the land cov- 
 ered by the grant was transferred to the corporation, and 
 that of making laws and regulations for the government of 
 the colony to the council named. The only reservation of 
 revenue was one-fifth of all gold and silver and duties on 
 merchandise improted into England of five per cent. The 
 company was authorized to make war when necessary for the 
 protection of its interests. This new corporation with its 
 large membership, whose names cover three and a half large 
 printed pages of the charter, proceeded vigorously with the 
 work of promoting the settlement of the country and, in 
 June, 1609, nine ships with 500 colonists sailed from Eng- 
 land. The Colonists fell into difficulties when Captain Smith 
 went back to England on account of a wound he had re- 
 ceived. In six months after he left there were but sixty per- 
 sons in the colony, and they had started down the river on 
 
UNITED STATES 7^9 
 
 their way to the Newfoundland fisheries, when they met the 
 new governor, Lord Delaware, with a large number of new 
 colonists and fresh supplies. The cultivation of tobacco was 
 taken up, instead of the unsuccessful search for gold, and 
 became very profitable. 
 
 Law-making for the colony was undertaken by the council 
 of the corporation in England, and in 1611 a set of very 
 strict laws was sent over to Virginia from London. Theft 
 and disrespectful language toward the king were made pun- 
 ishable with death, and swearing and absence from public 
 worship were also made capital on the third conviction. 
 
 In 1612 the thirdvand last charter to this colony was is- 
 sued, providing for meetings of the company in England 
 once each week or oftener for minor affairs and for general 
 ''courts" of the company, to be held four times each year, 
 with power at any general court to elect members of the 
 council, to nominate and appoint such officers as they should 
 think fit for the government of the affairs of the company, to 
 make laws for the government of the plantations not in con- 
 flict with the Laws of England, to admit and expel members 
 for cause and to enforce the performance of their contracts 
 by person bound to serve the company. These charters, it 
 will be noticed, were not to the people who might settle in 
 Virginia, but to people in England who furnished means and 
 promoted the settlement of the colony by others. It was a 
 corporate venture, organized in accordance wjth the general 
 principles of business corporations, but with political powers 
 added. 
 
 Acting under the powers of legislation conferred by this 
 charter, the Company sent out a set of very strict laws, framed 
 in accordance with the savage severity then prevailing in 
 the laws of England. Theft and disrespectful language 
 spoken of the king were again made capital crimes, and 
 swearing and absence from public worship were also pun- 
 ishable with death at the third offense. The settlement of 
 the colony thus far had been almost exclusively by men. In 
 1 61 9 a ship load of ninety girls was sent over, who were very 
 quickly married to planters and became the mothers of nu- 
 
790 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 merous families. About 1200 other settlers went in the same 
 year. Convicts were also sent from England and sold for 
 servants for a term of years. In the same year a Dutch 
 ship brought in the first cargo of African slaves and sold 
 them to the planters. Legislation for the colony by the cor- 
 poration in England was not found to be satisfactory and in 
 16 1 9 ''that the planters might have a hand in the governing 
 of themselves, it was granted that a general assembly should 
 be held yearly once, whereat were to be present the gov- 
 ernor and council, with two burgesses from each plantation, 
 treely to be elected by the inhabitants thereof, this assembly 
 to have power to make and ordain whatsoever laws should 
 by them be thought good and profitable." The first Council 
 of Burgesses met in Jamestown in 161 9. In 1622 the col- 
 onists suffered severely from a well concerted attack by the 
 Indians and, in the fierce war that followed, nearly 2000 
 colonists were killed. In 1624 King James dissolved the 
 London Company and took the government of Virginia into 
 his own hands, but continued the system then in use, himself 
 appointing a governor and council for the colony and allow- 
 ing the people to elect the House of Burgesses, thus model- 
 ling the colonial organization very closely after the British 
 home government, with a Governor representing the king, 
 a council appointed by him and a popular body chosen by the 
 people. This system continued down to the time of the 
 revolution. 
 
 The next charter was granted by James I in 1620, as the 
 charter of the second colony, covering the country from the 
 fortieth to the forty-eighth parallels of north latitude, to be 
 called New England, and created a body politic and corporate 
 in the town of Plymouth, county of Devon, to consist of 
 forty persons and no more "for the planting, ruling, order- 
 ing and governing of New England in America" and names 
 forty persons, including many of the nobility, as the members 
 of the first council established at Plymouth, with power to 
 fill vacancies thereafter occurring. The corporate name was 
 "the Council established at Plymouth in the county of Devon 
 for the planting, ruling and governing of New England in 
 
UNITED STATES 791 
 
 America" and they were given the usual powers of succes- 
 sion, to acquire and hold property in England and elsewhere, 
 to sue and be sued and use a common seal. They were given 
 authority to admit such persons into New England as they 
 should see fit, to allow them to have and possess such lands 
 as they should think fit, to trade there, to name governors, 
 officers and ministers to attend to the business of the cor- 
 poration and also for the government of the colony, to es- 
 tablish and ordain all manner of laws, orders and directions, 
 fit and necessary for the government of the colony and plan- 
 tations and on the high seas going and returning, as they 
 should think for the good of the adventurers. Full liberty 
 of emigration was allowed to all subjects with their goods 
 without paying any custom or subsidy for seven years, and 
 no customs or subsidies were to be collected in New Eng- 
 land for twenty-one years, except only £5 per cent on all 
 goods imported into England, with privilege then to export 
 to other countries. Leave was granted the council to divide 
 the land among the colonists and make wars on any enemies 
 interfering with their possessions. All other subjects were 
 prohibited from trading with the colony without license from 
 the council, and the council were authorized to seize any goods 
 brought into the colony or taken out without leave. All sub- 
 jects inhabiting New England and their children were guar- 
 anteed the rights of Englishmen. The religious idea finds 
 frequent expression and the exclusion of persons "suspected 
 to affect the Superstition of the Church of Rome" was en- 
 joined, and none were to be permitted to go there but such 
 as should take "the oathe of Supremacy." This charter is 
 very long and verbose. The first actual settlement in the 
 territory named in it was made by a company of Puritans, 
 who had emigrated to Holland and then returned to Eng- 
 land with a view to going thence to America. They obtained 
 a license from the London Company, but in the name of a 
 person who did not accompany them, and so in fact went 
 without any leave from the king or either of his chartered 
 companies. Unlike the first settlers of Virginia, they took 
 their families with them. Before landing at New Plymouth 
 
792 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 they entered into the following rather novel covenant. 'In 
 the Name of God, Amen. We whose names are underwritten 
 the Loyal Subjects of our dread Sovereign Lord King James 
 . . . Having undertaken for the Glory of God and ad- 
 vancement of the Christian faith, and the Honor of our king 
 and country, a voyage to plant the first colony in the northern 
 parts of Virginia. Do by these presents, solemnly and mu- 
 tually, in the presence of God and one another, covenant and 
 combine ourselves together into a civil Body Politick, for our 
 better ordering and preservation and furtherance of the ends 
 aforesaid: And by virtue hereof do enact, constitute and 
 frame such just and equal Laws, Ordinances, Acts, Consti- 
 tutions and Officers, from time to time, as shall be thought 
 most meet and convenient for the general good of the colony, 
 imto which we promise all due Submission and Obedience. In 
 witness whereof we have hereunto subscribed our names at 
 Cape Cod the eleventh of November in the reign of our sov- 
 ereign lord King James of England, France and Ireland the 
 eighteenth and of Scotland the fifty-fourth. Anno domni 
 1620." To this instrument forty-one names were signed. 
 Though they landed in the winter and endured great hard- 
 ships, the colony maintained its ground and its descendants 
 have played leading parts in subsequent American history. 
 Eight years later two hundred English Puritans settled at 
 Salem. On March 4, 1629, Charles I issued a new charter, 
 granting to Sir Henry Roswell and twenty-five others named, 
 and their heirs and assigns, certain lands along the coast of 
 Massachusetts and extending to the "South Sea." The par- 
 ties named and their associates were made a corporation under 
 the name of "the Governor and Company of the Mattachu- 
 setts Bay in Newe England," with the usual corporate powers 
 to have a Governor, Deputy Governor and eighteen assist- 
 ants "to be from tyme to tyme constituted elected and chosen 
 out of the freemen of saide Company." The Governor was 
 given authority to assemble the company and hold a court or 
 assembly once a month or oftener at their pleasure, at which 
 seven assistants, with the Governor or Deputy Governor, 
 should be a sufficient number to transact business, and that a 
 
UNITED STATES 793 
 
 general court of the Company should be held four times a 
 year, at which new members might be admitted, officers elected 
 and laws and ordinances enacted for the good of the company 
 and the government of the plantation, not repugnant to the 
 laws of England. The Governor, Deputy Governor and As- 
 sistants were to be chosen by the general assembly annually. 
 The other provisions of this charter are in substance a repeti- 
 tion of those contained in the New England charter, and all 
 the privileges given by that charter are continued in this. The 
 next year the company moved over to the colony, taking 
 more than a thousand colonists along. In this manner the 
 governing body of the colony came to be identified with the 
 colony itself, and a self-governing state was established on the 
 American continent, which not only chose its representative 
 assembly, but also its Governor and council and all officers 
 under them. The settlement of Massachusetts proceeded 
 rapidly from this time and, by 1640, many towns were planted. 
 Each town held its meetings at which all freemen voted for 
 magistrates and delegates to the General Court. Education 
 was recognized as a function of the state, every township 
 was required to maintain a school for primary instruction, and 
 every town of one hundred householders a Latin and Gram- 
 mar school. Harvard College was established by the General 
 Court in 1638, and in 1639 the first printing press was set up. 
 Thus in the brief period of twenty years a flourishing little 
 state had been established on a comparatively barren portion 
 of the American coast. 
 
 In 1609, prior to the landing of the Pilgrims, the Dutch had 
 sailed up the Hudson River as far as Albany. About four 
 years later they established a trading post on Manhattan 
 Island, and in 161 4 a fort was built by them at Albany. In 
 1629 the Dutch West India Company was formed and emi- 
 grated to New Netherlands, as their possessions near the Hud- 
 son River were called. They encouraged immigration to their 
 colony and gave great tracts of land to such as should bring 
 out colonists. These grants were the foundations of the great 
 landed properties of the Dutch patroons. The Dutch planted 
 colonies on the Connecticut and in 1654 took from the Swedes 
 
794 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the colony they had estabHshed on the Delaware. In 1664 
 the English took New Amsterdam and changed its name to 
 New York, and all the Dutch possessions there were ceded to 
 England at the termination of the war between these 
 countries. 
 
 Charters to lands they neither owned nor occupied were 
 lightly made and easily disregarded by kings, who ruled by 
 right divine, and who in contemplation of law could do no 
 wrong. In 1632 Charles I, notwithstanding the fact 
 that the territory was included in the Virginia charter, gave 
 Maryland to George Calvert, Lord Baltimore, but he having 
 died before delivery of the charter, another was made to his 
 son, Cecil Calvert, a Catholic. The charter was written in 
 Latin and differed from prior charters in the particulars, that 
 it was for a definite territory, to a single individual, of which 
 he was made "verum dominum et Proprietarium" subject only 
 to his fidelity and allegiance to the king, with full power to 
 govern the province and make laws, with the consent of the 
 freemen or their representatives. Religious liberty was guar- 
 anteed and the usual permission of subjects to emigrate, fight 
 their own battles and trade with the mother country. Under 
 the liberal policy of Calvert, the colony increased rapidly,, 
 drawing many settlers from the earlier colonies. 
 
 Without any charter or other express license from the king,, 
 in 1633 a company from Plymouth established a trading post 
 at Windsor on the lower Connecticut River. Two years later 
 settlements were made at Hartford, Withers ford and Spring- 
 field. Other towns were rapidly started along the sound by 
 Englishmen. 
 
 The first American constitution was made by the Connecti- 
 cut colonists and bears date Jan. 14, 1638. It provides that 
 all freemen who inhabit the country and take the Oath of 
 Fidelity shall be entitled to vote, that deputies shall be chosen 
 at town meetings, each voter writing the names on a piece of 
 paper and delivering it to persons chosen to count the votes, 
 that the deputies shall meet in a general court twice a year, 
 on the second Thursdays in April and September. The first 
 session was called the court of election, at which a governor 
 
UNITED STATES 795 
 
 and such magistrates, not less than six, and other officers as 
 might be deemed necessary, should be chosen by the deputies 
 by written ballot. At each court the deputies were authorized 
 to make laws and dispatch the public business, the Governor 
 presiding and having a casting vote in case of a tie. The 
 Governor was required to be a former magistrate and a mem- 
 ber of some approved congregation and could be elected only 
 once in two years for a term of one year. In calling the 
 General Court together the Governor issued his summons to 
 the constables of the towns, who notified the members, and 
 notices of town meetings were also given by the Constables. 
 The General Court could only be adjourned by a majority 
 vote, and a majority of the members could call a session if 
 the Governor refused to do so when necessary. This early 
 constitution is notable as furnishing, in rough outline, the 
 leading principles of the constitutions of the future American 
 States. The sovereignty, although in terms vested in the gen- 
 eral court, was in fact in the freemen of the colony, who ex- 
 pressed their will through the medium of the ballot and 
 annually appointed the members of the General Court, which 
 was the active governing power. 
 
 Tolerance of religious ideas among the Puritans was tol- 
 erance of their own beliefs only. No people ever had a more 
 bitter hatred of what they regarded as impure religions. In 
 November 1635 the General Court of Massachusetts sentenced 
 Roger Williams to banishment for his religious and political 
 opinions, and in June of the following year he and a colony 
 of others settled at Providence, Rhode Island, on lands 
 granted him by the chiefs of the Narragansett Indians. Other 
 settlements in that neighborhood soon followed. In 1643 
 the Earl of Warwick, as Governor-in-chief, and others as 
 commissioners for the government of the provinces in Amer- 
 ica, executed an instrument reciting the settlements above 
 named and the purchase of lands from the Indians and grant- 
 ing to the inhabitants of the towns of Providence, Portsmouth 
 and Newport a free and absolute charter of incorporation 
 under the name of the Incorporation of Providence Planta- 
 tions in "the Narragansett Bay, in New England together 
 
796 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 with full power and authority to rule themselves, and such 
 others as shall hereafter inhabit within any part of the said 
 tract of land, by such a form of civil government, as by vol- 
 untary consent of all or the greater part of them, they shall 
 find most suitable to their estate and condition," provided their 
 laws should be conformable to the laws of England, as nearly 
 as might be, and reserving power to regulate their relations 
 with the other colonies. This was in the reign of Charles I 
 after the Long Parliament came into power. The instrument 
 was not in form a royal charter but was signed by Robert 
 Warwick and ten others. No other charter was issued till 
 after Cromwell's time and the restoration of Charles II. In 
 1662 Charles II issued a charter to John Winthrop and 
 eighteen others by name and all such others as are or shall be 
 admitted free of the colony, to be a body politic and corporate 
 under the name of Governor and Company of the English 
 Colony of Connecticut in New England in America, to have 
 a Governor, Deputy Governor and twelve assistants elected 
 by the freemen of the company. Winthrop was appointed 
 Governor and twelve others as assistants, to hold till their 
 successors were chosen. The charter contains the usual pro- 
 visions of prior charters with reference to trade, liberty of 
 subjects to settle there and preservation of their rights as 
 English citizens, with leave to fight their own battles. It 
 grants them the lands of Connecticut and contains no reserva- 
 tion to the crown of power to appoint any officers for the 
 colony. In the next year he gave a charter to William Bren- 
 ton and twenty-five others by name, including Roger Wil- 
 liams, and all such others as now are or hereafter shall be 
 admitted and made free of our "collonie of Providence. 
 Plantations to be a corporation under the name of The Gov- 
 ernor and Company of the English Colony of Rhode Island 
 and Providence Plantations in New England" and to have a 
 Governor, Deputy Governor, ten assistants and a general As- 
 sembly to be elected by the freemen of the colony, vested 
 with full governmental authority. The other provisions are 
 substantially the same as, though not identical with, those in 
 the charter of Connecticut. This charter remained the con- 
 
UNITED STATES 797 
 
 stitution of Rhode Island, not only through the revolutionary 
 war, but till 1842. In the same year Charles II granted a 
 charter of an altogether different character, to Edward Earl 
 of Clarendon, George Duke of Albemarle, William Lord 
 Craven, John Lord Berkeley, Anthony Lord Ashley, Sir 
 George Carteret, Sir William Berkeley and Sir John Colleton, 
 for the territory from the north end of Lucke Island in the 
 south Virginia seas and within thirty-six degrees N. L. and to 
 the west as far as the south seas, southerly as far as the river 
 St. Mathias, which bordereth on the coast of Florida within 
 thirty-one degrees N. L. and so west as far as the south seas, 
 with the patronage and advowsons of all churches as amply 
 as any bishop of Durham ever held, and as true and absolute 
 Lords Proprietors of all the lands, saving only faith and al- 
 legiance to the king, for a yearly rental of twenty marks and 
 one-fourth of all gold and silver ore. The territory was in- 
 corporated into a province, named Carolina, and the proprie- 
 tors were given full power to appoint all necessary officers 
 and govern the province with the advice and consent of the 
 freemen of the province or their delegates or a majority of 
 them. The proprietors were also given power to make ordi- 
 nances, without assembling the freemen, and to establish ports 
 and collect customs for their use, to confer titles of honor, 
 to declare martial law in case of sedition, and to organize 
 armies and fight enemies. In 1665 a second charter was 
 granted, extending the boundaries to Latitude twenty-nine de- 
 grees. Under this charter a most peculiar scheme, called The 
 Fundamental Constitutions of Carolina, was framed in 1669 
 by John Locke, containing 120 sections. It provided that the 
 eldest lord proprietor should be called Palatine and the others 
 Admirals, Chamberlains, Chancellors, Constables, Chief Jus- 
 tices, High Stewards and Treasurers. The province was to 
 be divided into counties, each county into eight seigniories, 
 eight baronies and four precincts and each precinct to have 
 six colonies. An hereditary nobility was to be created, styled 
 landgraves, casiques and barons, and provisions calculated to 
 keep the great estates together were made. This instrument 
 is rather curious than important, as it was never executed and 
 
798 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 left no marked impression on future institutions. The spirit 
 of favoritism was further exhibited by Charles in 1664 in the 
 grant to his brother James, Duke of York, of Maine (which 
 had been granted to Ferdinando Gorges in 1639), Long 
 Island, the country between the Connecticut and Hudson 
 rivers and from the west side of the Connecticut river to the 
 east side of Delaware Bay, the islands of Martins Vineyard 
 and Nantuckett, with "full and absolute power and authority 
 to correct, punish, pardon, govern and rule all such of the sub- 
 jects of us our heires and successors as from time to time 
 adventure themselves into any of the parts or places afore- 
 said according to such lawes ordinances, direccons and in- 
 struments as by our dearest brother or his assigns shall be 
 established and in defect thereof in cases of necessity accord- 
 ing to the good direccons of his deputyes, commissioners, 
 officers and assigns" but as nearly as may be according to the 
 laws of England and subject to an appeal to the king. A 
 yearly rental of forty beaver skins, when demanded, was 
 reserved. No mention is made of any system of popular 
 representation in the government of the grant, but full and 
 arbitrary authority is given to rule with the usual privilege of 
 subjects to emigrate, etc. In 1629 The New England Com- 
 pany made a grant of lands between the Merrimac and 
 Piscataqua Rivers to Captain John Mason, and this grant was 
 confirmed by another by the council ''assembled in publick 
 court" which gave the name of New Hampshire to the district 
 granted. In 1680 Charles II issued a commission restraining 
 the assembly of Massachusetts from exercising authority 
 over New Hampshire and providing a President and council 
 of nine, to be a court of record for the administration of 
 justice in New Hampshire, from which an appeal in matters 
 involving £50 or more might be taken to the king. The laws 
 of England were to be followed as far as applicable and a 
 general assembly was to be called with legislative power. 
 
 The next charter was that issued to William Penn in 1681 
 for Pennsylvania. He was made the proprietor with full 
 power to govern the colony "by and with the advice assent 
 and approbation of the Freemen of said Country or the 
 
UNITED STATES 799 
 
 greater parte of them, or of their Delegates or Deputies," to 
 be assembled as Perm might direct. The only reservation to 
 the crown was fealty and one-fifth the gold and silver ore. 
 A transcript of all laws passed was required to be transmitted 
 to the privy council and might be annulled within six months, 
 otherwise to stand. Power was conferred to establish ports 
 of entry and collect Customs and Subsidies. An agent or 
 attorney resident at London was required to be appointed and 
 reported to the Clerk of the Privy Council, to appear in the 
 courts at Westminster to answer for misdemeanors of Penn, 
 his heirs or assigns. Full power was conferred on Penn to 
 convey the land as he might see fit, notwithstanding the pro- 
 visions of the statute of ''Quia Emptores Terrarum/' Penn 
 and his grantees were authorized to erect manors and hold 
 Courts Baron thereon. The charter further provides, ''That 
 Wee our heires and Successors shall at no time hereafter sell 
 or make or cause to be sett, any imposition, custome or other 
 taxation rate or contribution whatsoever, in and upon the 
 dwellers and inhabitants of the aforesaid province, for their 
 Lands, tenements, goods or chattels within the said province, 
 or in and upon any goods or merchandise within the said 
 Province or to be laden or unladen within the ports or har- 
 bours of the said Province, unless the same be with the con- 
 sent of the Proprietary, or chiefe governor, and assembly or 
 by act of Parliament in England." No provision similar to 
 the foregoing appears in any prior charter. It will be noticed 
 however that this authorizes taxation of the colony, either by 
 the consent of their representatives or of Parliament. 
 
 William Penn was a remarkable man, a favorite of the 
 king, though subjected to persecution because a Quaker in 
 faith. Born in the privileged class, he was an ardent re- 
 former. He kept in mind the great truth, so constantly dis- 
 regarded by statesmen, that peace and social order are mainly 
 dependent on confidence in the justice and friendship of those 
 concerned, rather than on superior force. Though given a 
 proprietory charter to the whole territory by the English 
 king, he respected the rights, not only of the Swedes and 
 Dutch who had already made settlements there, but of the 
 
8oo EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Indians as well, from whom he obtained by treaty the right 
 to make settlements in their country. He drew up and pub- 
 lished on July II, 1681 ''Certain conditions or concessions 
 agreed upon by William Penn, Proprietary and Governor of 
 the Province of Pennsylvania, and those who are the adven- 
 turers and purchasers in the same province" in which provi- 
 sions were made with reference to the sale of the land and 
 the laying out of towns, with various regulations calculated 
 to secure just treatment of the Indians both as to occupancy 
 of land and trading. In 1682 he published his "Frame of 
 Government of Pennsylvania" with a preface in which he 
 expressed briefly his views on the principles of government 
 and said among other things : 
 
 "I do not find a model in the world that time, place and 
 some singular emergencies have not necessarily altered; nor 
 is it easy to frame a civil government, that shall serve all 
 places alike." 
 
 'Thirdly, I know what is said by the several admirers of 
 monarchy, aristocracy and democracy which are the rule of 
 one, a few, and many and are the three common ideas of 
 government, when men discourse on the subject. But I chuse 
 to solve the controversy with this small distinction and it be- 
 longs to all three. Any government is free to the people 
 under it (whatever be the frame) where the laws rule, and the 
 people are a party to those laws, and more than this is ty- 
 ranny, oligarchy or confusion." 
 
 "But lastly, when all is said, there is hardly one frame of 
 government in the world so ill designed by its founders, that 
 in good hands, would not do well enough; and story tells us, 
 the best in ill ones, can do nothing that is great or good, 
 witness the Jewish and Roman states. Governments like 
 clocks go from the motion men give them, and as govern- 
 ments are made and moved by men, so by them they are 
 ruined too. Wherefore governments rather depend upon 
 men, than men upon governments. Let men be good, and 
 the government cannot be bad ; if bad, let the government be 
 never so good, they will endeavor to warp and spoil it to 
 their turn." 
 
UNITED STATES 8oi 
 
 "That therefore, which makes a good constitution must 
 keep it, viz., men of wisdom and virtue, quahties, that because 
 they descend not with worldly inheritances, must be carefully 
 propagated by a virtuous education of youth." 
 
 It would be difficult to compress more political wisdom into 
 a single sentence than is contained in the last one quoted. 
 The general frame of his government provided for .a proprie- 
 tary Governor, a provincial council of seventy-two, and a 
 General Assembly, elected by the freemen of the province ; the 
 council to be divided into four committees charged with over- 
 sight of different matters, one of which was "a committee of 
 manners, education and arts, that all wicked and scandalous 
 living may be prevented." A body of laws, also prepared in 
 England, in forty sections, was attached to the frame of 
 government. 
 
 The settlement of the colony proceeded very rapidly, and 
 during the year 1682 about 2,000 persons, mostly Quakers, 
 came in. Penn obtained from the Duke of York a grant of 
 the Delaware country and a release of his claims on Pennsyl- 
 vania, and went over to America. He divided the country 
 into six counties and summoned the first general assembly at 
 Chester in December 1682. A modified frame of govern- 
 ment reducing the number of members of the council to 
 eighteen and fixing the representation in the assembly at 
 thirty-six — six from each county^ — was signed by Penn and 
 accepted by the members of the Council and Assembly on 
 2-2-1683. The active governing power was vested in the 
 Proprietary Governor and council, by whom laws were pre- 
 pared and submitted to the assembly for approval. 
 
 After the accession of William and Mary to the British 
 throne, Benjamin Fletcher, Governor of New York, was conj- 
 missioned Captain General and Governor of Pennsylvania, 
 but the government was restored to Penn, who appointed Wil- 
 liam Markham, Governor. A still further modification of the 
 frame of government was deemed necessary and adopted by 
 the Governor, Council and Assembly. The Council was to 
 consist of two persons chosen from each county and the As- 
 sembly of four from each county. The qualifications of 
 
8o2 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 electors were that they must be free denizens, twenty-one 
 years of age and have fifty acres of land, ten of which were 
 ^'seated and cleared," or £50 clear in other property and have 
 resided two years in the province. Much space is given to 
 * 'attests" to be taken by public officers in lieu of official oaths. 
 The ^ principle that the legislative bodies should be the sole 
 judges of the election of their members was incorporated, and 
 members of the Assembly were allowed four shillings per 
 day, the speaker and members of the Council five shillings and 
 all of them two pence per mile for traveling expenses going 
 and coming. Bonds from sheriffs and clerks were required. 
 Two-thirds of the members of the Assembly were required 
 for a quorum on the passage of a law or judgment of impeach- 
 ment. The executive power was vested in the Governor and 
 Council and also the management of the treasury, from which 
 no payments were allowed, except "what hath been agreed 
 upon by the Governor, Council and Assembly." Legislation 
 might be initiated by the Governor and Council or the repre- 
 sentatives of the freemen in the Assembly might propose such 
 laws as should be agreed on by a majority of them. The last 
 and final act of constitutional legislation by Penn was a 
 charter given by him and accepted by the Council and Assembly 
 on Oct. 28, 1 701. It refers to the various grants to him, to 
 the prior frames of government, states that they were found 
 in some parts not suitable to present conditions, and contains 
 eight articles. The first is a strong guaranty of religious 
 liberty, and allows persons to hold office who take the attests 
 provided for in existing laws, without oath. The assembly 
 was to consist of four from each county with power to choose 
 a speaker and their other officers and be judges of the qualifi- 
 cations and elections of their members, appoint committees, 
 prepare bills and impeach criminals. The freemen in each 
 county at the time of electing members of the assembly were 
 authorized to nominate two persons for each of the offices of 
 sheriff and coroner, from whom the Governor could appoint 
 one each for three years, "if so long they behave themselves 
 well." It was further provided "That all criminals shall have 
 the same privileges of Witnesses and Council as their Prose- 
 
UNITED STATES 803 
 
 ciitors"; that persons licensed to keep tavern must be recom- 
 mended by the Justices of the county, and that the estate of 
 a suicide should go to his wife and children. In the closing 
 paragraph it provides for a separation of Uelaware from 
 Pennsylvania in case either of them so desires w^ithin three 
 years, and guarantees the liberties of the charter to each. 
 Thio separation took place and Delaware was organized as a 
 separate colony under the charter. This charter does not 
 cover specifically nearly so many matters as the prior frames 
 of government, but seems to have been intended to provide 
 for a few matters then uppermost in his mind. It remained 
 in force until the revolution, as the fundamental law of 
 Pennsylvania. 
 
 Among the most conspicuous characteristics of the Puritan 
 settlers of New England were religious intolerance and a 
 determination to manage their own affairs without any inter- 
 ference from England. Quakers seem to have fared worst of 
 all and some of them were executed. The settlers of New 
 England suffered very little from the Indians till King 
 Philip's War, which broke out in June, 1675, and finally in- 
 volved the settlers in a fierce struggle with the confederated 
 tribes of New England. About 600 whites perished, but the 
 Indian tribes were nearly exterminated. Parliament had be- 
 fore that time levied duties of tonnage and poundage on the 
 trade of the colonies and began to look to them as important 
 possessions. The colonists fought the Indians in King Philip's 
 War without the aid of the mother country, but this served 
 rather to call attention to their power and independent spirit 
 than to ingratiate them with the King. In 1683 he thought 
 fit to take away their privileges, and in order to do so made 
 use of the court of King's Bench, which issued a writ of quo 
 ■zvarranto to the Governor and Company of Massachusetts, on 
 ^hich, at the Trinity Term 1684, a judgment was entered, 
 "that the letters patent and the enrollment thereof be an- 
 nulled." This was but one of the many instances of the 
 subserviency of the judges to the power that appointed them. 
 James II sent Edmond Andros as Governor to Massachusetts 
 ^vhere he arrived in 1686 but, on the overthrow of James and 
 
804 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the accession of William and Mary, the people of Massachu- 
 setts rose in arms, imprisoned Andros and elected their own. 
 governor, assistants and deputies. In 1691 William and. 
 Mary issued a new charter, reciting the issuing of the former 
 charters and the settlement of the colonies thereunder, and 
 that at Trinity term 36th Charles II, a second judgment was. 
 given in our Court of Chancery then sitting at Westminster 
 upon a writ of Scire Facias against the Governor and Com- 
 pany of the Massachusetts Bay in New England that said 
 letters patent be cancelled, and then ''wills and ordeynes" 
 "that the Territories and CoUonyes commonly called or knowa 
 by the Names of the Colloney of the Massachusetts Bay and 
 Collony of New Plymoth, the Province of Main, the Terri- 
 torie called Accadia or Nova Scotia and all that tract of land 
 lying betweene the said territories of Novo Scotia and said 
 province of Main be erected united and incorporated into one 
 reall Province by the name of Our Province of the Massa- 
 chusetts Bay in New England" and then grants to them the 
 land by particular boundaries, reserving one-fifth the gold 
 and silver ore; preserving to private persons, towns, villages, 
 colleges and schools the lands held by them under prior 
 grants. The administration of the colony was placed under 
 a Governor, a Lieutenant or Deputy Governor and a Secretary 
 of the Province to be appointed by the king, twenty-eight as- 
 sistants and a general court or assembly made up of twa 
 freeholders, elected from each town by freeholders owning 
 land worth forty shillings per year or other property worth 
 forty pounds. The twenty-eight councillors were to be chosen 
 by the Assembly. The appointment of judges, sheriffs, mar- 
 shals, justices of the peace and other officers was entrusted to 
 the Governor with the advice and consent of the Council. 
 Oaths of allegiance were required from all officers. The in- 
 habitants of the province and their children were guaranteed 
 the liberties of English subjects with liberty of conscience 
 (except papists). Full governing power was conferred on the 
 General Court, which consisted of the Governor, or Deputy, 
 the Council and Assembly, with authority to establish courts 
 of general jurisdiction, subject to an appeal to the king in 
 
UNITED STATES 805 
 
 council in civil causes involving £300. The governor was 
 given a veto on legislation, and all acts of the Assembly were 
 required to be transmitted to the king, who reserved the power 
 to annul them within three years. 
 
 A controversy having arisen with reference to the right of 
 the Assembly to choose its speaker, in 1726 George I issued 
 an explanatory charter giving the Assembly the right to elect, 
 but the Governor might disapprove the choice, when a second 
 election was required. The assembly was given power to 
 adjourn, not exceeding two days, without the consent of the 
 Governor, but the Governor was authorized to adjourn, dis- 
 solve and prorogue it. These charters seriously abridged the 
 rights of the colonists to govern themselves and were never 
 satisfactory to the people. 
 
 New Jersey, as we have seen, was included in the grant to 
 the Duke of York with Maine and New York. In 1664 he 
 granted New Jersey to Lord John Berkeley and Sir George 
 Carteret. The government of the colony was then regulated 
 in accordance with "Concessions" made by the Lords Pro- 
 prietors of the province, which were amended from time to 
 time till 1702, when the proprietors surrendered their rights 
 to the crown and it was then governed as a royal province. 
 
 The territories of both North and South Carolina were in- 
 cluded in the Carolina proprietary grants, and no separate 
 royal charter was ever issued for either. 
 
 The last Royal charter issued was by George II in 1732 to 
 John Lord Viscount Percival and nineteen others named, who 
 were made a corporation under the name of The Trustees for 
 establishing the colony of Georgia, in America, with power to 
 hold land in England of not over £1,000 yearly value. Perci- 
 val was made President, with a council of fifteen to be in- 
 creased to twenty- four. The charter grants seven-eighths only 
 of the lands from Savannah River to the Alatamaha and 
 westerly from the heads of the rivers to the south sea, with 
 power to sell and convey the same to purchasers, who were to 
 be required to pay the king four shillings yearly per 100 acres, 
 beginning ten years after the sale. The corporation was given 
 power to make laws and appoint officers for the territory for 
 
8o6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 twenty-one years, to be approved by the king in council. The 
 appointment of officers and employees of the corporation 
 from its members was prohibited, and the corporation was 
 also prohibited from selling land to its members and from 
 selling over 500 acres to one person. The governor of the 
 colony was to be appointed by the council of the corporation, 
 subject to the approval of the king. After twenty-one years 
 the government was to be such as the king should ordain. 
 This being the nearest colony to the Spanish settlements in 
 Florida, it was not long till hostilities broke out between the 
 English settlers of Georgia and the Spanish of Florida. 
 Probably ovring to this situation and hostilities with the In- 
 dians, the settlement of Georgia progressed slowly and, at the 
 end of the time limited in the charter, the king assumed the 
 government through his appointees. 
 
 In some respects the early settlement of America resembles 
 that of England by the Jutes, Angles and Saxons. Both 
 were popular movements for permanent change of habitation, 
 by which the natives were driven out to make room for the 
 invaders. In both the invaders fought their own battles and 
 made headway as best they could without the backing of the 
 military force of the mother country. In other respects there 
 were marked differences. The Saxons met a people of the 
 same race, not greatly their inferiors in any respect, and on 
 the whole more peaceful and civilized than themselves. To 
 reach England but a short voyage was involved, and the in- 
 vaded country was at least under as good tillage and as well 
 supplied with domestic animals as that the invaders came 
 from. The settlers of America found a strange race of indo- 
 lent hunters, wholly unaccustomed to European modes of life. 
 Though the early settlement of Virginia was attended with 
 heavy losses from Indian hostility, the general rule was that 
 there was comparatively little warfare between the English 
 settlers and the Indians prior to the breaking out of hostili- 
 ties between France and England in 1689. In New England 
 there was peace with the natives till 1636, when the Pequot 
 Indians killed a trader on the Connecticut River, for which in 
 that and the following year the tribe was nearly exterminated. 
 
UNITED STATES 807 
 
 The whole tribe was treated as responsible for the murder, of 
 which most of them were of course entirely innocent. King 
 Philip's War in 1675 was a much more serious affair and 
 resulted in considerable loss to the whites, but this came fifty- 
 five years after the landing of the Pilgrims at Plymouth, and 
 resulted, as did all other wars with the natives, in their final 
 crushing defeat. In Pennsylvania just treatment of the 
 Indians secured peace for a time. The Dutch in New Nether- 
 lands had trouble with them mainly because of cruel treat- 
 ment. The growth of ideas of self-government and real 
 independence of the home government was entirely natural 
 and a logical sequence of the system followed. While the 
 Plymouth colony made its start without any royal sanction, 
 home corporation or proprietary founder, the general rule 
 was that a company was first formed in England to promote 
 the founding of a colony or a single grantee from the crown 
 undertook the task. The first steps taken in England were 
 by private persons who raised the necessary funds, procured 
 the ships and induced hardy and resolute men and women to 
 make the long voyage, and settle in the strange land. The 
 chief motive of the promoters and proprietors was private 
 gain. The gold and silver brought over by the Spaniards 
 from Mexico and South America excited the cupidity of the 
 English kings, who expected to find these metals in their 
 colonies also. It is a noticeable fact that in all charters, ex- 
 cept that for Georgia, there is a reservation of a share of the 
 gold and silver ore, but not of rental of the land. The true 
 wealth of the new country was not apprehended, but the semi- 
 barbaric notion of the value of so-called precious metals was 
 uppermost in the minds of the English kings. The value of 
 the food supply and other usable commodities, now obtained 
 in such great abundance from the United States, was regarded 
 as of far less importance than gold and silver. The gathering 
 into the ships of the bold spirits who came across the ocean, 
 was the primary work of founding the colonies. No great 
 number ever came at one time or at the instigation of any one 
 person or corporation, though several shiploads sometimes 
 came together, and others followed at longer or shorter in- 
 
8o8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 tervals, according to circumstances. No powerful home cor- 
 poration like the East India Company was evolved as a result 
 of these operations. The settlers, once landed in America, 
 were from the necessities of the situation forced to shift for 
 themselves. The Virginia and Massachusetts colonists had 
 to treat with the Indians on their own authority, and to or- 
 ganize their fighting forces whenever hostilities were threat- 
 ened. This was true everywhere in the parts of America 
 settled by the British. It is significant that, in all the charters 
 from the king, express authority is given the grantees to or- 
 ganize armies and make war to maintain possession of the 
 territory granted. The sovereign did not assume the function, 
 usually so jealously guarded, of directing the military forces 
 of the colonies, but left that to the proprietors or colonists 
 themselves. They were without any other means of support- 
 ing their forces than such as they contributed for that purpose. 
 Now the primary functions of all the governments of the 
 earth, from their inception, have been the gathering and com- 
 manding of armies and the raising of supplies for them. Even 
 at this day the principal functions of the governments of 
 Europe are connected with the organization and maintenance 
 of mihtary forces. By these charters such functions were 
 transferred to private hands. The effect of this policy it 
 would seem might easily have been foreseen. The colonists 
 found in America illiterate savages, indolent and filthy, yet 
 exceedingly proud of their independence and individuality. 
 The Indian owed allegiance to no ruler. He followed the 
 chief of his choice. He roamed where he pleased through the 
 forest. He paid no tax, he served no master. He was sloth- 
 ful and improvident to the last degree, and this, rather than 
 wars, accounts for his destruction. In the long course of 
 time the natural process of evolution exterminates the war- 
 rior, the idler, the improvident and filthy. The warrior, 
 though he may kill many, kills warriors mostly and is himself 
 the target for his adversaries. The idler and the wasteful man 
 or tribe sooner or later perish from famine. The filthy fall 
 a prey to contagious and epidemic diseases, which spread and 
 fester under conditions so favorable. Thus the Indian, partly 
 
UNITED STATES 809 
 
 by war, but more by famine and disease, wasted away before 
 the advancing whites. His powers of organization were 
 hmited. Confederacies of tribes were effected at times, but 
 hunters, accustomed to supply their daily wants from the 
 chase, could not organize and feed an army. An Indian raid 
 came like a thunder storm and quickly passed away. A great 
 army of savages, if once drawn together, would necessarily 
 perish from want of supplies. To subsist on forage they must 
 scatter. Thousands of years of warfare in Europe have 
 taught the importance of supplies of food and munitions of 
 war in order to use an army once organized. The colonists 
 came with knowledge of the advantages of organization, but 
 were largely of such hardy and independent spirits that they 
 often suffered through their inclination to act separately. The 
 notions of social order, government, property rights, and 
 laws, which they brought with them from the mother country, 
 led all the colonies to organize such governmental agencies 
 as appeared to them necessary in their situation. The May- 
 flower Pilgrims, as we have seen, signed a compact before 
 landing. The first permanent colony of Virginia followed the 
 leadership of Captain John Smith. As the colonies increased 
 in size and settlements multiplied, it was found impracticable 
 for all the settlers to meet and consult, so delegates were 
 chosen from each town or district to represent it in a general 
 meeting. The organization did not proceed exactly along 
 lines subsequently maintained, but as time wore on the ad- 
 vantages of a wider and wider combination to insure concert 
 of action against common foes by all the English colonies was 
 more and more felt. In the early days the home government 
 paid little heed to conditions in America. There was often 
 much friction between governors sent out from England and 
 the colonists. Scions of nobility, reared in England, were 
 often sent over, who had no conception of the needs of the 
 colonies they came to govern. The result was, in most if not 
 all instances, that the colonists refused to be guided by them 
 and sooner or later forced their recall. Popular institutions 
 took their most advanced form in New England, where the 
 town meeting, into which all the freemen of the town gathered. 
 
Sio EVOLUTION OF GOVERNMENTS AND LAWS 
 
 was the governmental unit. These units acted in concert, 
 through an Assembly of delegates chosen by each, who in 
 turn selected the executive officers. The freemen in town 
 meeting regulated all the concerns of the town, leaving to the 
 assembly only matters of general concern. This was very 
 similar to the ancient Saxon system at the time of the first 
 invasions of England, except that the Saxons had no repre- 
 sentative bodies. In the early days of New England there 
 were several separate colonies in each of the small territories 
 of Massachusetts, Connecticut and Rhode Island, and the 
 subsequent consolidations were mainly the work of the colo- 
 nists, effected through new royal charters, obtained on their 
 petitions. 
 
 So early as May 19, 1643, ^^ alliance was formed by the 
 Plymouth, Massachusetts Bay, Connecticut and New Haven 
 colonies for matters of common concern. The Indians, the 
 French on the north and Dutch on the west, whose hostility 
 they feared, led them to join for their defense. They entered 
 into a written compact, embodied in a preamble and eleven 
 articles. At this time these colonies are said to have had an 
 aggregate population of about 24,000, living in thirty-nine 
 towns, and took the name of the United Colonies of New 
 England. The affairs of the confederacy were placed in 
 charge of two commissioners from each colony, but each 
 colony remained independent as to all its local affairs. This 
 confederacy continued in existence for a number of years. 
 As the colonies grew in population and came to have more 
 intercourse with each other, the idea of joining forces for 
 their mutual protection gained force. 
 
 The most powerful enemy against whom they had to con- 
 tend was not the savage natives, but the civilized French, who, 
 having possession of Canada on the north and Louisiana in 
 the southwest, formed a chain of posts along the Great Lakes, 
 and the Ohio and Mississippi Rivers to connect them, and 
 constantly threatened the English settlements from the rear. 
 Each nation sought alliances with the natives. The French 
 were rather the more successful and attached the powerful 
 tribes of the north to their interests. The British however 
 
UNITED STATES 8ii 
 
 secured the friendship of the Five Nations of New York. Nu- 
 merous conferences were held, not only by the Governors of 
 New York, but by representatives of other states with the 
 chiefs of these powerful tribes. So early as 1684 one of these 
 conferences was held at Albany, at which Virginia, Maryland, 
 Massachusetts and New York were represented. It was 
 deemed a matter of great importance to secure and hold the 
 friendship of these Indians, who occupied the border region 
 between the English and French settlements. Similar con- 
 ferences, though with a varying representation of colonies, 
 were held in 1690- 1694, 1 722-1 748 and 1751. In 1698 Wil- 
 liam Penn gave out a plan for the union of the American 
 colonies, but nothing came of it. 
 
 The attempts to govern the colonies from England proved, 
 in nearly every instance, a failure because of a want of knowl- 
 edge of the situation of affairs in America, and especially of 
 a lack of understanding of American character, which gener- 
 ation by generation developed under conditions very dissimilar 
 from those existing in England. Most of the country had 
 been given out to great landholders, but the actual settlers 
 were not of the aristocratic class. The population was almost 
 entirely rural, but it was not an English rural society. Though 
 great proprietors sought in most of the states to establish a 
 rent paying tenantry and succeeded in doing so in some parts, 
 the general rule was that the settlers soon became independent 
 freeholders. This was the case especially in New England, 
 where, except in Maine and New Hampshire, there was no 
 great lord proprietor. Clearing forests, building houses in 
 the wilderness, defending against Indians and hunting wild 
 beasts developed not merely a strong, hardy and courageous 
 race but a self-reliant one. The government of Great Britain 
 was far away and unsympathetic. In their local gatherings, 
 and even in meetings from the various colonies, men came 
 together who were confronted with similar difficulties and 
 readily understood each other's wants and abilities. Nearly 
 all the governors sent over from England came imbued with 
 ideas of kingly prerogative. For these the colonists cared 
 little, because they served no purpose among them. Although 
 
8i2 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 from the conclusion of peace with the Dutch in 1664 till the 
 final revolt of the colonies, the English held undisputed pos- 
 session of the whole coast from Maine to Florida, no compre- 
 hensive plan was formulated by the king or parliament for 
 governing the country as a whole, nor was there any general 
 system applied alike to all the colonies. Each claimed its 
 special privileges under its peculiar charter, and above all the 
 settlers claimed the right to meet their difficulties in their own 
 practical ways. 
 
 The colonists brought with them their English traditions 
 and ideas of right. The common law of England, yvith some 
 modifications by legislative enactment, was administered in 
 the courts and by the same system of practice, in the main, 
 that obtained in England. In Massachusetts religious zeal 
 was carried to extremes of intolerance, and Quakers and 
 others were even hanged for heresy. The strangest exhibition 
 of judicial barbarity, aside from this, was in the trial and 
 execution of poor people, mostly women, for witchcraft. It 
 is exceedingly difficult to understand how such practical and 
 shrewd people as the Puritans could have believed in the ex- 
 istence of a crime of this kind. In their overstrained morality 
 they became not a little hard and cruel. It happened with 
 them, as with so many others, that, in their intense hatred of 
 imaginary vices, they committed real crimes against the inno- 
 cent. Charity and compassion, the expressions of a loving 
 spirit, were not general among them. Their great strength 
 lay in their industry, thrift and the education of their chil- 
 dren. Study and work, under rigid and gloomy discipline, 
 were the rule. The colonists early gave much attention to 
 learning. The first free school in America was established 
 in Charles City Virginia in 1621. Many others were estab^ 
 lished throughout New England, where it was deemed of 
 especial importance that all should diligently study the Bible 
 and be governed by its teachings. Free schools were opened 
 in Maryland in 1704 and primary education of the young was 
 far more general throughout the colonies, from the earliest 
 days, than in the mother country. Attention to higher educa- 
 tion was also given at a time when the settlements were very 
 
UNITED STATES 813 
 
 sparce and the people very poor. Of the great universities, 
 Harvard was established in 1638, William and Mary's 1693, 
 Yale 1 71 6, Princeton 1746, Columbia 1754, University of 
 Pennsylvania 1755, Brov^n 1764. In their beginnings all 
 were small and poor but they soon exerted powerful influence. 
 
 While the colonists received little aid from the king in their 
 struggles with the natives, king-craft in Europe repeatedly 
 exposed them to the horrors of warfare with Europeans and 
 savages. King William's struggle with France for his Dutch 
 possessions involved the colonists from the two countries in 
 warfare with each other, as well as with the savages, from 
 1689 to 1697. The war of the Spanish succession in the reign 
 of Queen Anne, from 1702 to 1713, caused a similar state of 
 hostilities in America. War with Spain from 1739 to 1742 
 occasioned severe fighting with Spanish and Indians in the 
 Southern Colonies, and the claims of King George's family in 
 Germany caused war with France again from 1744 to 1748. 
 It is impossible to tell just how many people were killed in 
 the colonies by Indians or how many by the French and 
 Spanish, but it is probable that far more than half the butcher- 
 ies of English colonists were caused directly by the policy 
 of the so-called civilized g^overnments of Europe, and that, if 
 left to deal with the natives in their own way, without any 
 interference from without, the colonists would have suffered 
 but little from them. 
 
 Very much has been said and written about the hardships 
 and dangers endured by the early settlers, and especially con- 
 cerning the horrors of Indian warfare, yet the real truth ap- 
 pears to be that America was a far more safe and happy place 
 to live in during the seventeenth and first half of the eigh- 
 teenth centuries than Europe. In 1751 Franklin estimated 
 that there were about i ,000,000 English souls in America, but 
 that not more than 80,000 had been brought over by sea. 
 Natural increase went on, if this, be so, at such a rate that in 
 144 years the population had been multiplied by twelve and 
 one half. But only a small part of the 80,000 came so early. 
 While this remarkable increase of population occurred in 
 America, no European state of importance made an increase 
 
8i4 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 nearly so great. Definite statistics are not to be had on the 
 subject, but the population of England probably did not 
 double in the whole period, and may not have increased more 
 than fifty per cent. Thus it is shown that conditions were 
 more than ten, perhaps more than twenty, times as favorable 
 to the multiplication of the species in America as in England, 
 during the very period so often mentioned as one of such 
 excessive danger and hardship. War, famine, hard laws, 
 bloody courts, selfish and cruel kings and councillors, are 
 largely responsible for the unfavorable results in Europe. 
 Ample lands with liberty to make use of them as best they 
 could, and comparative exemption from the burdens of Euro- 
 pean miHtarism and injustice were the leading causes of 
 American increase. 
 
 When the war, known in America as the French and Indian 
 war and in Europe as the Seven Years' war, broke out, the 
 American colonies had become important factors in the con- 
 test. Before the formal declaration of war collisions had 
 occurred in the Ohio valley, claimed by both Virginia and the 
 French. The British ministry perceived the necessity for 
 concert of action among the colonial forces. Early in the 
 spring of 1754 the ministers sent notice to the colonial gov- 
 ernments, that it was the .desire of the king that they should 
 oppose the encroachments of the French by force, and recom- 
 mended that they should send delegates to a general conven- 
 tion, at Albany, to form a league with the Six Nations and 
 provide for their own united action. Maryland, New York, 
 Pennsylvania and the New England colonies responded. Ben- 
 jamin Franklin was a delegate from Pennsylvania to this 
 conference. He there proposed a federal league, to be author- 
 ized by an act of Parliament, with a president appointed by 
 the king, a grand council of members chosen by the provincial 
 assemblies to the number of not less than two nor more than 
 seven from each colony; the executive power to be lodged in 
 the president and the legislative in the council and president. 
 This government was to have power to declare war, make 
 peace, conclude treaties with the Indians, regulate trade with 
 them, purchase their lands, raise troops, arm vessels, provide 
 
UNITED STATES 815 
 
 for the general safety and impose taxes for these purposes. 
 The laws enacted were to be sent to England for the approval 
 of the king, who might disallow them within three years. 
 Naval and military officers were to be nominated by the 
 president and approved by the council, and civil officers were 
 to be nominated by the council and approved by the president. 
 This plan met with opposition from both sides. The colonists 
 thought it conferred too. much power on the king, the British 
 government that it gave the representatives of the people too 
 much power. The general idea was not novel, it was merely 
 an extension of the system then prevailing in most of the 
 colonies to a larger organization, including them all, with 
 powers limited to matters of general concern. The delegates 
 to the convention were unanimous in the opinion that union 
 of the colonies was essential to their safety, but were unable 
 to agree on any plan to effect it. Franklin's plan was about 
 midway between the extremists but satisfactory to neither 
 side. Though the formal declaration of war was not pub- 
 lished in England till May 17, 1756, fighting had been going 
 on in America for nearly two years, and Braddock had sus- 
 tained his disgraceful defeat the preceding year. In the 
 spring of 1756 the governors of the colonies met at New 
 York and agreed on a general plan of military operations. 
 The British army regulations, which gave precedence to offi- 
 cers holding British commissions over those issued by the 
 colonies, were of course distasteful to the Americans, who 
 naturally contrasted the prudence of Washington with the 
 folly of Braddock. In this war the colonies made a very con- 
 siderable show of military force. In the expedition against 
 Crown Point in 1755 between 5,000 and 6,000 men were fur- 
 nished by New England and New York. In 1757 more than 
 6,000 American troops were gathered at New York under 
 the incompetent Lord Landoun. After Landoun's recall his 
 successor Abercrombie gathered an army of 50,000, of whom 
 28,000 were provincials. Massachusetts alone raised 7,000 
 and Connecticut 5,000. America became an important field 
 for the struggle between the two nations and, while the pro- 
 vincials furnished many men, large numbers of regulars were 
 
8i6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 brought over from England, and the command of all the 
 principal armies was in the hands of British officers. The 
 results of this war were important to the colonists in many 
 ways. Canada, all the northern portion of the continent and 
 also the Ohio valley, Florida and all the territory east of the 
 Mississippi, except Louisiana, became British territory. The 
 British government had become more fully aware of the value 
 of the land and of the productive capacity of the colonies. 
 Their cupidity was aroused and directed toward gaining 
 wealth through exclusive trade privileges and taxation of the 
 colonies. The right of the British Parliament to regulate the 
 foreign trade of the colonies was not seriously questioned by 
 the colonists, but its exercise, especially with respect to the 
 trade with the West Indies, was regarded as a grievous injury. 
 The natural advantages of exchanges of the products of New 
 England for those of the southern islands were so great that 
 the trade was very profitable. 
 
 On the question of the right of Parliament to levy taxes 
 on the colonies a more decided stand was taken. It was 
 claimed by the Americans, as a settled principle of English 
 constitutional law, that no tax could be imposed on British 
 subjects, except with the assent of representatives chosen by 
 themselves, and that they were guaranteed the rights of Eng- 
 lishmen by their charters. As none of the colonies had rep- 
 resentation in the British Parliament, it was denied that it had 
 any right to grant their money to the king. The position' 
 taken by Franklin and most of the American leaders was, that 
 the king should himself, through his ministers, call on the 
 colonial assemblies for contributions to his treasury, and that 
 these assemblies, as representatives of the American people, 
 would then grant such revenues as were proper. The expense 
 of the French and Indian War had added about £86,000,000 
 to the national debt of Great Britain, a sum exceeding the 
 whole prior debt. English statesmen and taxpayers were 
 eager to shift a part of the burden of this debt to the 
 shoulders of the Americans. On the other side, the Ameri- 
 cans had endured the horrors of warfare for British domin- 
 ion, and insisted on their right to determine what they should 
 pay. 
 
UNITED STATES 817 
 
 From the time of Cromwell there was a marked difference 
 in the development of ideas on the two sides of the Atlantic. 
 In England there had been a strong reaction, not only against 
 the religious sentiments of his time, but also against the liberal 
 political ideas then prevailing. The house of Hanover labored 
 to strengthen the royal prerogative, and popular rights in 
 England meant nothing more than the rights of the wealthy 
 and titled few. The toiling masses were not consulted in 
 affairs of government. In America, the land held by resident 
 owners was mostly in comparatively small tracts, its value 
 depending almost wholly on the labors of the owners with 
 some few slaves in places. There was no such system of 
 tenantry as existed on the great manors of England. The 
 democratic spirit had steadily grown, not as a result of po- 
 litical agitation, but of the modes of life, and the habits of 
 thought naturally resulting from substantial equality of con- 
 dition and daily necessity for independent action and self- 
 reliance. For a century and a half the people had been 
 accustomed to give heed only to regulations of their own 
 making, and at times to refuse obedience to governors sent 
 over from England, who sought to exercise arbitrary power. 
 Under these different conditions a British Parliament was in 
 no position to legislate intelligently for the colonies. It lacked 
 the first and all important qualification, knowledge of the 
 people, their character and surroundings. Nothing could 
 have been more unwise than the stamp act of 1765, the lead- 
 ing provisions of which are given in the preceding chapter. 
 The taxes it imposed were so noticeable, challenging the 
 attention of the taxpayer to the fact of the imposition 
 as well as the amount, whenever a stamp was required. It 
 did not require actual payments under it to disclose its odious 
 character to the colonists. They simply would not submit to 
 it. Th^ir protests and resistance were so general and so vigor- 
 ous as to occasion its speedy repeal without the realization of 
 any revenue from it. The inexcusable blunder had been made 
 of challenging the attention of the people of the colonies to 
 the principle involved, taxation without representation. 
 Parliament still insisted on its sovereign power, and by the 
 
&i8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 declaratory act and the duties levied on tea and a few other 
 commodities asserted its claims. The colonists would prob- 
 ably have submitted under protest to the collection of these 
 duties had it not been for the unfortunate quartering of troops 
 in Boston and the foolish act closing the port of Boston. The 
 British ministry, still ignorant of American character, looked 
 to military force to obtain obedience, and also sought, by in- 
 creasing the salaries of the judges of Massachusetts and mak- 
 ing them independent of the legislative assembly, to have an 
 instrument they could rely on. These things tended to exas- 
 perate, rather than to overawe, the people. 
 
 Looking back at the issues raised between the British Min- 
 istry and the colonists, it must be admitted that from the Eng- 
 lish standpoint, their measures were mild for that age, that 
 the home people bore far heavier burdens of taxation and 
 were more oppressed by monopolies and trade restrictions 
 than the Americans. The trouble was that there existed a 
 wide difference between the states of public feeling in the 
 two countries. A measure that would have fallen like a spark 
 in wet straw in England was like a fire brand in dry prairie 
 grass in America. It kindled instantly a flame which spread 
 over the whole country. Though the colonies had some just 
 grounds of complaint, they were not grievously oppressed. 
 They enjoyed far greater advantages on the whole, with much 
 lighter burdens, than the common people of England. The 
 system of town meetings in New England was made use of 
 to arouse the people and disseminate the views of the leading 
 spirits on the public question involved. The various colonial 
 assemblies passed resolutions on the subject. The discussion 
 of the abstract question as to the right of Parliament to tax 
 the colonies began in 1764 by a resolution of Parliament 
 asserting the right. This was followed by a denial of it by 
 the General Court of Massachusetts. After the passage of the 
 stamp act, the House of Burgesses of Virginia also took its 
 stand against the right, and other legislatures quickly passed 
 similar resolutions. On Oct. 7, 1765, the first real American 
 Congress met in New York. Nine colonies namely, Massa- 
 chusetts, Rhode Island, Connecticut, New York, New Jersey,. 
 
UNITED STATES 819 
 
 Pennsylvania, Delaware, Maine and South Carolina were 
 represented by delegates numbering twenty-eight in all. This 
 congress passed resolutions of loyalty, claiming that one of 
 the rights of Englishmen, secured to all the colonies by their 
 charters, was the right to tax themselves, which could only 
 be done by their own legislative bodies. An address to the 
 King, a memorial to the House of Lords and a petition to the 
 House of Commons, were prepared and forwarded. Vir- 
 ginia, North Carolina and Georgia were prevented by their 
 governors from sending delegates to this congress, but they 
 forwarded petitions to England similar in import to the reso- 
 lutions of the congress. A pecuHar mode of resistance to 
 British measures was that adopted by the merchants of Bos- 
 ton, New York and Connecticut, who agreed not to import 
 or purchase any merchandise, — a few enumerated articles ex- 
 cepted, — from Great Britain for a year. Two regiments of 
 soldiers having been quartered in Boston, some of them on 
 March 5, 1770, exasperated by gibes and pelted with stones 
 by a mob, fired on them, killing three and wounding others, 
 one of whom afterward died. This was called the Boston 
 Massacre and tended to increase the irritation caused by the 
 quartering of troops there. Throughout the early years New 
 England had been allowed greater freedom in the manage- 
 ment of its domestic affairs than the more southern colonies. 
 It was now made the center for repressive measures and the 
 exercise of arbitrary power. The result could have been fore- 
 told by anyone familiar with the character of the New Eng- 
 landers of that day, but ignorance of it led the British Ministry 
 to commit blunder after blunder. The sentiment of loyalty 
 to the British government and kinship to the English people 
 was still strong throughout all the colonies. The people 
 could easily have been led to tax themselves, and probably to 
 have contributed their full share to the revenues of the crown, 
 but they could not endure arbitrary power. Trade restrictions 
 and duties led to smuggling, and this in turn to severe mea- 
 sures to repress it. In June 1772 the armed schooner Gaspre, 
 employed in the revenue service, having run aground in shoal 
 water near Providence, Rhode Island, was boarded by armed 
 
820 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 men in whale boats and burned. The East India Company, 
 encouraged by the allowance of a drawback of the English 
 duty of a shilling a pound on tea to be exported to America, 
 where the duty was only threepence and believing they could 
 realize great profits from it in the colonies, sent several ship- 
 loads to New York, Boston, Philadelphia, and Charleston. 
 But the Americans had decided not to drink tea. At New 
 York and Philadelphia the ships were sent back to London. 
 At Charleston the people unloaded it and stored it in damp 
 cellars, where it soon spoiled. At Boston, having vainly tried 
 to send back the three shiploads which had arrived there, a 
 party of men disguised as Indians boarded the ships and 
 emptied the tea into the bay. As soon as this was known in 
 England, Parliament passed a bill ordering the port of Bos- 
 ton closed, and followed it with bills prohibiting town meet- 
 ings, except with the consent of the governor, and requiring 
 persons charged with offenses against the state to be sent to 
 England or another colony for trial. These were direct blows 
 at the most dearly cherished rights of the people, which had 
 been guaranteed them by their charters and enjoyed ever 
 since the earliest settlements. The town meeting was like the 
 tribal meeting of the ancient Saxons. Through it the public 
 will found expression. It could not be taken away, except by 
 a force superior at every point to the people of the colonies, 
 yet an ignorant, foolhardy ministry sought, through a vote of 
 Parliament, to revolutionize New England's political life. 
 The first thing done at Boston, after the receipt of news of the 
 passage of these acts, was to hold a town meeting. This was 
 what had always been done when any matter, of great public 
 concern required attention. Resolutions were passed calling 
 for concert of action among the colonies and a suspension 
 of trade with Great Britain till the wrongs were righted. 
 These extreme measures on the part of Great Britain were 
 generally comprehended throughout the colonies, and the 
 cause of Boston and Massachusetts was looked upon as one 
 common to all the cities and colonies. The Virginia Assembly 
 resolved to observe the first day of the operation of the port 
 bill as a day of fasting, and proposed a general congress to 
 deliberate and provide for the common welfare. 
 
UNITED STATES 821 
 
 On September 4, 1774, delegates from eleven colonies met 
 at Philadelphia and on the next day chose Peyton Randolph 
 as their president. A declaration of rights was agreed upon 
 and the repeal of the acts of Parliament infringing them was 
 demanded. To enforce their demands an agreement to sus- 
 pend trade relations with England was entered into. Ad- 
 dresses to the King, to the people of the colonies and of Great 
 Britain were prepared. The effects of the liberties which the 
 colonists had enjoyed, and of the attention paid by them to 
 education, were now made manifest. Boldness of spirit in 
 asserting their rights was the offspring of habits of self- 
 reliance and independence, clearness of statement of their 
 rights and demands, was due to a thorough knowledge of the 
 growth of liberal principles in England and of the free insti- 
 tutions of ancient Greece and Rome. Lord Chatham charac- 
 terized the addresses as masterpieces of their kind. After an 
 eight weeks' session Congress dissolved, with the recommen- 
 dation that another be held on the tenth of May following at 
 Philadelphia. The ministry looked to the army to enforce 
 their policy, and General Gage and two regiments of infantry 
 and some artillery were landed at Boston. The colonists 
 began to make preparations for a collision, and the Massa- 
 chusetts committee of safety gathered some supplies at Con- 
 cord. Gage sent out a force to seize them, and the collision 
 with the minute men of Lexington, which opened the war of 
 the Revolution, took place April 19, 1775. Then followed on 
 May 10 the capture of Ticonderoga and on June 17 
 the Battle of Bunker Hill. On May 10, 1775, the time 
 fixed by the first congress, delegates from twelve colonies met 
 at Philadelphia. They forthwith recognized the existence of 
 a state of hostility between England and the colonies, and 
 determined to provide for their defense, but, still seeking 
 peace, they resolved that they wished for peace and that "to 
 the promotion of this most desirable reconciliation an humble 
 and dutiful petition be presented to his majesty." The peti- 
 tion and a second address to the people of Great Britain, as 
 well as others to the people of Canada and Jamaica, were 
 prepared. Congress voted to equip 20,000 men, chose George 
 
822 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Washington commander-in-chief of the army of the United 
 Colonies, authorized an issue of bills of credit to the amount 
 of $3,000,000 and pledged the twelve United Colonies to their 
 redemption. On July 6 the Continental Congress issued a 
 manifesto, justifying their resort to arms, yet disclaiming any 
 intention to establish their independence of the Crown. In 
 July a convention in Georgia resolved to support the common 
 cause and sent delegates to the Congress. In December Con- 
 gress resolved to fit out thirteen ships of war. March 17, 
 1776, as a result of the siege by the American army under 
 Washington, the British troops amounting to 7,000 men 
 evacuated Boston, and a fleet took them to Halifax. The 
 military operations in 1775 were generally favorable to the 
 colonists, mainly because the British government had not yet 
 organized and sent over its armies. Aug. 25, 1775, the king 
 issued a proclamation against the rebellion and sedition in 
 America, and in October Parliament voted 25,000 men to 
 maintain his authority. Arrangements were soon after made 
 to hire 17,000 Hessian auxiliaries. Thus war grew into 
 greater proportions, and both sides looked to force rather 
 than reason to maintain their positions. When the news 
 reached America that so large a force was about to be sent 
 against them, and that they had been declared out of the royal 
 protection, the sentiment in favor of independence grew 
 rapidly. It was perceived that open organized resistance of 
 British authority was inconsistent with a pretense of loyalty 
 to the king. Writers and speakers began to talk vigorously 
 in favor of throwing off all allegiance and on June 7 Richard 
 Henry Lee of Virginia moved in Congress "that the United 
 Colonies are and ought to be, free and independent States, 
 and that their political connection with Great Britain is, and 
 ought to be dissolved." The motion was earnestly advocated 
 and vigorously opposed. It passed by one majority. Further 
 consideration of the subject was postponed until July i, and 
 a committee, consisting of Thomas Jefferson, John Adams, 
 Benjamin Franklin, Roger Sherman and Robert R. Living- 
 ston, was appointed to prepare a declaration. These were 
 remarkably strong men, who thoroughly understood the feel- 
 
UNITED STATES 823 
 
 ing's of the people for whom they were to speak. The decla- 
 ration they prepared, and which was finally adopted and 
 proclaimed on July 4, 1776, still blazes forth as the beacon 
 light by which Americans are guided in their efforts to secure 
 liberty to all. The fundamental principles on which they 
 based their action were not to be found in any code of Europe, 
 nor have they yet been given full operation in America. 
 
 The substance is contained in the second paragraph as 
 follows : 
 
 "We hold these truths to be self-evident, that all men are 
 created equal; that they are endowed by their Creator with 
 certain unalienable rights, that among these are life, liberty 
 and the pursuit of happiness. That to secure these rights 
 governments are instituted among men, deriving their just 
 powers from the consent of the governed; that whenever any 
 form of government becomes destructive of these ends, it is 
 the right of the people to alter or to abolish it, and to institute 
 a new government, laying its foundations on such principles, 
 and organizing its powers in such form, as to them shall seem 
 most likely to effect their safety and happiness." The decla- 
 ration then proceeds with an arraignment of the King of 
 England for a long list of tyrannical acts with which he was 
 charged, and a justification of the course pursued by the 
 colonists in their efforts to obtain redress of their grievances. 
 
 The breach between the British government and the colonies 
 had now become irreparable and the old, cruel, and unneces- 
 sary method of settling questions of right by the horrors and 
 barbarities of war was resorted to on both sides. British 
 statesmen in all times past had relied on force to compel sub- 
 mission to their authority. American statesmen knew no 
 other course but to resist force with force. Centuries of edu- 
 cation to forsake Christ and follow the ancient war gods 
 caused the people to follow their leaders into the bloody strife. 
 That the misunderstanding started from a question which 
 ought to have been settled by reason in a friendly conference 
 is clear; yet so poor, clumsy, obstinate and morally defective 
 were, and usually have been, the statesmen of the time, that 
 untold misery must needs supply the place of the virtue and 
 
824 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 intelligence which belong in the councils of a great nation. 
 The frightful responsibility of setting the elder branch of the 
 English family in arms against the younger one was assumed 
 with that alacrity with which evil passions so frequently are 
 allowed to lead to destruction. 
 
 Having utterly thrown off all the authority of the British 
 government, the task of constructing one of their own was 
 presented to the colonists. They were not hampered by any 
 claims of hereditary authority on the part of Americans. 
 British titles had remained on the east side of the ocean, and 
 equality of political rights was not a discovery of some ad- 
 vanced philosopher, but a patent fact long recognized in 
 America. Equality did not need to be established, nor was 
 there any occasion for educating the people to it. Whatever 
 sentiment of loyalty to the king or of respect for. titled no- 
 bility existed — and there was some — was for a king and 
 nobility far away across the ocean, not for dwellers in 
 America. 
 
 The organization of new governments necessarily started 
 from the people in their primary capacity, and was effected in 
 each colony through the medium of a convention or assembly 
 of delegates, selected by the people in their town meetings in 
 New England and New York and their counties in the south. 
 The transition from the colonial system to one of independ- 
 ent states was effected easily and naturally. The system which 
 had prevailed needed only slight modification to provide for 
 such parts of the governmental force as had been theretofore 
 appointed by the Crown. All the colonies had elective legisla- 
 tive bodies, and Connecticut and Rhode Island chose their 
 own Governors and judicial officers. The people were ac- 
 customed to look to their representatives for legislation on 
 matters of interest to the colony, and systems of election were 
 already in use, by which the people were accustomed to name 
 them. The town meeting system, which prevailed in New 
 England, furnished a most convenient means of expressing 
 public sentiment, and one which the royal governors found it 
 utterly impossible to seriously interfere with. The people in 
 the southern colonies also found no difficulty in choosing 
 
UNITED STATES 825 
 
 representatives and convening them for business. Constitu- 
 tions providing for state governments were adopted during 
 1776 in all but four of the colonies; the conventions in Georgia 
 and New York met in 1776, but did not complete their labors 
 till February and April respectively of the following year. 
 In Massachusetts a constitution was framed by the General 
 Court in 1778 which was rejected by the people and it was not 
 till 1780 that one was adopted. Connecticut, being satisfied 
 with its existing system under its charter, merely affirmed its 
 independence by an act of its General Court, adopted the 
 form of civil government contained in the charter of Charles 
 II and promulgated a brief bill of rights. A new constitution 
 was not framed till 18 18. Rhode Island also was so well 
 satisfied with its charter government that it framed no con- 
 stitution till 1842. In most of the colonies the governors had 
 been named by the king, but the charters of Connecticut and 
 Rhode Island provided that they should be elected by the 
 General Assembly. It was therefore quite natural that, on 
 cutting off the appointing power of the king, it should be 
 transferred to the representative body. Under the first con- 
 stitutions the chief executive officer, styled Governor in some 
 states and President in others, was elected by direct vote of 
 the people in Massachusetts and New York only. His term 
 in New York was three years. In New Hampshire a tempo- 
 rary arrangement was made for the choice of a council of 
 twelve, by whom a president was named. The constitution 
 then adopted was not intended to be complete or permanent. 
 In 1 784 a new one was framed under which the President was 
 chosen by the people. In all the other colonies the Governor 
 was chosen by the Legislative body and held office only for 
 one year. The preponderating force in all the states was the 
 great representative body, which derived its authority and 
 was named directly by the people. The idea prevailed every- 
 where that delegates to the legislature should come out of the 
 body of the people and return to them at short intervals, so 
 as to always be in a position to truly represent the prevailing 
 sentiment of those for whom they acted. The members of 
 the most numerous branch of the legislature were chosen for 
 
826 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 one year only in every state except South Carolina, where the 
 term was two years. Most of the constitutions provided also 
 for a senate or legislative council, to be elected at the same 
 time as the representatives, but in New York and Virginia the 
 senators were elected for four years and in Maryland for five 
 years. In most of the states an executive council was also 
 provided for, which was selected by the assembly. While 
 some of the more carefully drawn constitutions provide in 
 express terms for the separation and independence of the 
 executive, legislative and judicial functions, the provisions of 
 some of them with reference to the choice and powers of the 
 judiciary are not very explicit. In no case was their election 
 by the people required. The tenure of office of the judges of 
 the high courts was during good behavior in all the states 
 which framed new constitutions at that time, except New 
 Jersey and Pennsylvania, where the term was seven years. 
 Nearly all the constitutions guarantee full religious liberty 
 without qualification, but that of Massachusetts allows the 
 Legislature to provide for public worship and qualifies the 
 freedom of religious observances. The distaste in some 
 states for clerical interference in affairs of state was so great, 
 that the constitutions of Delaware, Georgia, New Jersey, 
 North Carolina and Virginia, expressly disqualify all min- 
 isters of the gospel from sitting in the Legislature, and some 
 of them disqualify them from holding any office whatever. 
 All the states provided for the choice of delegates to the Con- 
 gress of the United States to be chosen annually by the Legis- 
 lature. The constitution of Massachusetts is the most full 
 and explicit of all and goes much more into details than the 
 others. The constitutions of Maryland, Massachusetts, 
 North Carolina and Pennsylvania begin with what are termed 
 Declarations of Rights and that of Virginia with a Bill of 
 Rights. Perhaps the best of these for brevity, clearness and 
 strength is that of North Carolina, though that of Virginia 
 is also an admirable model. All these constitutions crystalize 
 the impulse and spirit which moved the colonists to revolt. 
 The prime purpose of all of them was to protect the people 
 against arbitrary power. Liberty and public order were the 
 
UNITED STATES 827 
 
 two great blessings they were designed to secure. With the 
 amendments, which subsequent experience has dictated, they 
 have been found to serve these purposes admirably. The one 
 fatal inconsistency of such lofty statements of the inalienable 
 rights of men with the actual holding of slaves was felt by 
 the leading statesmen of the time, but could not then be 
 avoided. Little mention of African slavery is to be found 
 in these constitutions, most of which are altogether silent on 
 the subject. Delaware provided that no slaves should be 
 thereafter brought in from Africa, nor from other colonies 
 for sale. While the work of forming state government went 
 on so expeditiously, that of providing a system for conducting 
 the general affairs of the United States was found much more 
 difficult. No general government had ever existed, except the 
 British monarchy, which was utterly thrown off. No model 
 existed for, nor were the people educated or accustomed to 
 respect, any central authority speaking for all. Though a 
 congress had been formed by the simple process of sending 
 delegates from each colony, the extent of its powers and the 
 manner of exercising them was wholly undefined, and the 
 ratification of the state governments was requisite before the 
 resolutions of Congress could be given effect. 
 
 On June 11, 1776, Congress resolved that a committee 
 should be appointed to prepare a form of confederation, and 
 on the next day the committee was made up. It was not till 
 Nov, 15, 1777, that articles of confederation were completed, 
 finally agreed to in Congress and proposed to the states. They 
 were formally ratified and signed on behalf of eight states on 
 July 9, 1778, but did not receive the assent of Maryland till 
 March i, 1781. These articles provided for the retention of 
 their sovereignty by the states, but united them in a league 
 for mutual defense. They gave to the citizens of each state 
 all the privileges of citizens of the other states, and provided 
 for a Congress, made up of delegates from the states, chosen 
 for one year subject to recall. Each state was given only 
 one vote in Congress, but might be represented by not less 
 than two nor more than seven delegates. The states were 
 prohibited from making treaties, sending embassies or 
 
828 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 forming alliances with each other without the consent of 
 Congress. The treasury of the Confederated States was de- 
 pendent on contributions from the states, to be raised under 
 the direction of the Legislatures, as were the quotas of men 
 for the army and navy. Congress was given exclusive power 
 to malce peace or war, send ambassadors, make treaties, de- 
 cide controversies between the states, regulate the coinage 
 of money and to conduct the general affairs of the states. A 
 committee of the states with a president was vested with 
 executive power during the recess of Congress. 
 
 The weakness of this plan of organization lay in its lack 
 of executive force. The Congress could do little more than 
 resolve and give directions for the use of the troops and the 
 disbursement of the funds which the state legislatures might 
 provide. It had no power to act directly on the citizens of 
 the states. It could neither enforce military service nor col- 
 lect taxes. These defects became painfully apparent as the 
 war progressed and the necessities of unity and promptness 
 became more and more apparent. Not only was there great 
 delay in obtaining supplies through the state legislatures, but 
 there was no means of compelling action on their part after 
 Congress had made its requisition. The devotion of the peo- 
 ple to the cause of liberty, and the remarkable patience, 
 steadiness of purpose and ability to inspire confidence, ex- 
 hibited by Washington, had to make good the weakness of 
 Congressional authority. Though in military organization 
 and equipment the Americans were far inferior to the British, 
 in spirit and enterprise they were quite superior. The British 
 could take the seaport cities with comparative ease, but 
 Burgoyne fell into difficulties and was forced to surrender his 
 army in an attempt to force his way through New York. The 
 spirit and energy with which the Americans surrounded him 
 with a superior force were characteristic of a free people. 
 Similar conditions proved the ruin of Cornwallis and his 
 army. With the aid of France and Spain the independence 
 of the colonies was achieved, and a preliminary treaty of 
 peace was signed at Paris on Nov. 30, 1782. The final 
 definitive treaty was not completed and signed till Septem- 
 ber 3, 1783. 
 
UNITED STATES 829 
 
 Though many inconveniences had attended the loose or- 
 ganization under the articles of confederation, while the war 
 lasted the authority of Congress was generally respected, and 
 it gained a character with the people, who generally under- 
 stood that success without united action would have been im- 
 possible. When the strain of war was removed the inadequacj^ 
 of the powers of Congress to provide for the general welfare 
 became more apparent and, the common danger being past, 
 conflicting interests of the different states were regarded as 
 of more importance, and the effect of commercial treaties, 
 which Congress had no power to make binding on the state, 
 more productive of discord. A great debt had been incurred, 
 for the payment of which Congress had no adequate powers 
 of taxation. The army, which had fought so successfully, 
 was to be disbanded with large arrears of pay due the soldiers. 
 The recommendations by Congress of treaties negotiated with 
 foreign powers, and for the raising of funds to pay public 
 obligations, were no longer followed by the states, unless 
 satisfactory to them. The pressure of evident necessity to 
 force compliance was lacking. The desire for a more effi- 
 cient national organization had been frequently expressed, 
 and, under the lead of Virginia, a convention was called to 
 meet at Annapolis to consider the subject, but the attendance 
 was so small that nothing of importance was done beyond, 
 issuing an address urging the appointment of commissioners 
 from each state to meet in Philadelphia in May following. 
 On Feb. 21, 1787, Congress adopted a resolution favoring 
 the convention. In pursuance of this plan a convention with 
 delegates from seven states, and later from all but Rhode 
 Island, met at Philadelphia and elected George Washington 
 as its president. This convention framed a constitution, a 
 full copy of which with all amendments subsequently adopted 
 will be found in the appendix. 
 
 This constitution having been agreed to by the Convention, 
 engrossed and signed by all the members present, except 
 Gerry of Massachusetts and Mason and Randolph of Vir- 
 ginia, was transmitted by the president to Cons^ress with a 
 resolution providing the manner of putting it in execution 
 
830 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and an explanatory letter. On September 28, 1787 Congress 
 directed that the Constitution, resolutions and letter ''be 
 transmitted to the several Legislatures in order to be sub- 
 mitted to a convention of delegates chosen in each state 
 by the people thereof, in conformity to the resolves of the 
 convention.'* It was ratified by the states on the dates fol- 
 lowing: Delaware, December 7, 1787; Pennsylvania, De- 
 cember 12, 1787; New Jersey, December 18, 1787; Georgia, 
 January 2, 1788; Connecticut, January 9, 1788; Massachu- 
 setts, February 6, 1788; Maryland, April 28, 1788; South 
 Carolina, May 23, 1788; New Hampshire, June 21, 1788; 
 Virginia, June 26, 1788; New York, July 26, 1788; North 
 Carolina, November 21, 1789, and Rhode Island, May 29, 
 1790. The new constitution was put in operation on March 
 
 4, 1789 with George Washington as President and John 
 Adams as Vice-President, before its ratification by the two 
 states last named. There had been violent opposition to it, 
 mainly on the ground that it conferred so much power on 
 the general government and was deficient in its guarantees of 
 liberty and of the rights of the states. This feeling was so 
 strong and general that the first Congress, on September 25, 
 1789, proposed twelve amendments to the Legislatures of 
 the states, ten of which were ratified by the requisite number 
 of states by December 15, 1791. The journals of Congress 
 do not show any ratification by either Connecticut, Georgia 
 or Massachusetts, but include Vermont, which had been ad- 
 mitted into the union, February 19, 1791, as a new state. 
 The new articles adopted are given in the appendix. 
 
 The next amendment was proposed by Congress September 
 
 5, 1794, declared adopted January 8, 1798 and reads: 
 
 "The judicial power of the United States shall not be con- 
 strued to extend to any suit in law or equity, commenced or 
 prosecuted against one of the United States by citizens of 
 another state, or by citizens or subjects of any foreign state.'' 
 
 The Supreme Court of the United States had decided, that 
 it had jurisdiction of a suit to compel a state to pay a debt, 
 and this amendment was adopted to prohibit any further ex- 
 ercise of such jurisdiction. The next amendment was pro- 
 
UNITED STATES 831 
 
 posed in 1803, proclaimed as adopted September 25, 1804, 
 and stands as Article 12 of amendments. It changes the 
 mode of electing the president and vice-president. No further 
 amendments were made for more than sixty years. The next 
 were the XIII and XIV, prohibiting slavery, and guarantee- 
 ing the rights of the liberated negroes, which followed as a 
 result of the Civil War. The thirteenth was proposed Feb- 
 ruary I, 1865, and declared adopted December 18, 1865. The 
 fourteenth was proposed June 16, 1866, and declared adopted 
 July 21, 1868. 
 
 The Supreme Court of the United States has held that 
 corporations are citizens within the meaning of the first sec- 
 tion of this amendment, and the principal effect of the amend- 
 ment, so construed, is to prohibit the state Legislatures from 
 regulating the business of great corporations, a matter never 
 discussed or generally thought of when the amendment was 
 adopted. The XV was proposed February 27, 1869, and de- 
 clared adopted March 30, 1870. The XVI amendment was 
 proposed by Congress and ratified by the requisite number of 
 states in February, 191 3. From the time of the French and 
 Indian War the political principle most cherished among the 
 people of the American states has been, and still is, individual 
 liberty. Resort to arms for the maintenance of their rights, 
 has been, and still is, generally regarded as justifiable, and 
 the war spirit is perhaps as prevalent as in the European 
 states. In 1801 hostilities commenced with Tripoli and were 
 continued till June 1805 by the naval force. The wars in 
 Europe were the occasion of acts on the part of both England 
 and France which caused great irritation to those engaged 
 in foreign commerce. The search of American vessels for 
 deserters from the British navy, practised by the English, was 
 especially exasperating. Other high-handed proceedings on 
 the part of the British government led to a declaration of war 
 on June 19, 181 2. It was expected that the people of Canada 
 would break away from Great Britain and join the United 
 States, but in this they were disappointed. In this contest 
 the Americans again had to face Indian warfare on the fron- 
 tiers. In the fighting on land the advantages were mainly on 
 
832 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the side of the British, whose troops were better discipHned, 
 but at sea the Americans disputed their claim to rule the wave 
 and won some victories, sustaining also some defeats. The 
 contest with France drew the main force of the British and 
 saved the Americans from the full brunt of the war. A 
 treaty of peace was made in December 1814. With the ex- 
 ception of the Indian wars, which took place on the frontiers 
 from time to time, the country was at peace till 1846. Texas, 
 having gained its independence from Mexico, was on March 
 I, 1845, annexed to the United States and admitted into the 
 union as a new state on December 29, 1845. War with 
 Mexico followed and as a result of it, by the treaty of Guad- 
 alupe Hidalgo, concluded February 2, 1848, the vast territory 
 from Texas to the Pacific was added to the possessions of 
 the United States. The Louisiana purchase in 1803 had 
 added the fertile district of undefined extent west of the 
 Mississippi River, and in 1821 Florida was ceded by Spain. 
 By a subsequent treaty a relatively small district was pur- 
 chased from Mexico, known as the Gadsden purchase, thus 
 completing the present boundaries of the contiguous territory 
 of the United States. The foreign wars of the United States, 
 except that with England, have not been of such magnitude 
 as to seriously strain the resources of the country or check 
 its growth and prosperity. The unfortunate circumstance of 
 a slave population in a part of a great country, whose leading 
 political dogma was personal liberty, led, first to bitter words 
 and then to a civil war between a part of the slaveholding 
 states and the regular government, which, for the vast num- 
 bers of men drawn into the armies, the bloody battles fought, 
 and the determination of each side to succeed at all hazards, 
 has rarely been equalled. In the political campaign of i860 
 there was a breaking up of old parties, and a new party, 
 whose main purpose was to prevent the extension of slavery 
 into the territories, elected its candidates for president and 
 vice-president. Leaders in the slave-holding states saw in 
 this a menace to the institution of slavery and induced the 
 states to attempt to withdraw from the Union. The right 
 of a state to secede was asserted in the south and denied in 
 
UNITED STATES 833 
 
 the north. No peaceful tribunal existed to which the parties 
 were willing to submit the question, and the old, horrible, 
 barbarous tribunal of war was invoked. During the struggle 
 the government of the United States expended far more 
 money in expenses of the war than the market value of all 
 the slaves in the whole Union. As a mere matter of dollars, 
 the general government could have bought, paid for and 
 liberated every slave for far less money than was expended 
 on the army and navy. Far more important of course than 
 the money, were the men who lost their lives, their limbs or 
 health in the contest, and the misery and destitution in the 
 homes of the absent soldiers. These were the direct and ap- 
 parent effects of the mad struggle. The indirect effects, 
 though not so easily discerned, were of great importance. 
 There was a general lowering of moral standards throughout 
 the country. An impetus was given to the building of great 
 fortunes, and to corrupt influences on public officials from 
 which the country has not recovered. The object lessons of 
 the war, most patent to the rising generation, were lessons 
 of the use of the organized powers of the contending parties 
 for the taking of the lives and the destruction of the property 
 of each other. This war could not have taken place if the 
 people generally had been educated to condemn war as bar- 
 barous. The histories, then and still read by the people, are 
 mostly filled with the details of wars, and the men most ad- 
 mired and extolled are the military leaders. The war spirit will 
 be propagated and break forth with its furies and moral pesti- 
 lence till the people are taught peace, and wholesale murder 
 by nations is classed with retail murder by individuals and 
 condemned by the public conscience. Nations have seldom 
 suffered more severely from the effects of civil war than did 
 the United States from 1861 to 1865, yet perhaps none ever 
 recovered from the effects so rapidly. The question which 
 gave rise to the conflict having been decided and the basis of 
 the contention removed, the work of resuming harmonious 
 relations was quickly accomplished. The people of the se- 
 ceded states were taken again into the Union, which they had 
 ^-ainly tried to break awav from, and accorded all the rights 
 and privileges of those who had maintained it. 
 
834 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 From the adoption of the fifteenth amendment till the rati- 
 fication of the sixteenth a period of forty-three years. elapsed. 
 
 State Constitutions 
 
 From thirteen, the number of the revolting colonies which 
 assumed independence and sovereignty in 1776, the Union 
 has now grown to contain forty-eight states, each with rights 
 equal to those enjoyed by the original thirteen. The early 
 constitutions modelled as we have seen after the colonial 
 systems of government theretofore prevailing, have been 
 amended or superseded by new ones from time to time, and 
 the forty-eight fundamental laws of the states afford a most 
 pleasing exhibit of advancement in the administration of 
 public affairs and the development of the" principles of gov- 
 ernment by a free and intelligent people. The ideas of gov- 
 ernment generally entertained at the time of the Revolution, 
 having been moulded in English forms, did not extend to the 
 selection of executive and judicial officers by direct choice of 
 the people. Delegates to the legislative body, chosen in com- 
 paratively small districts, were the only officials selected by 
 vote of the people in England. So, under the first constitu- 
 tions of the states, the people elected only representatives to 
 the legislatures, leaving to them the selection of executive and 
 judicial officers. In Connecticut the people had always elected 
 their governors and in Massachusetts had done so till their 
 charter was annulled. As a safeguard against the arbitrary 
 exercise of power, the expedient of three separate coordinate 
 departments was adopted. The idea of this division of 
 powers is thus clearly expressed in the fourth Article of the 
 declaration of rights in the constitution of North Carolina 
 of 1776. 
 
 "That the legislative, executive and supreme judicial pow- 
 ers of government ought to be forever separate and distinct 
 from each other." The same idea is embodied in all the 
 constitutions and expressed in terms in many of them. Over 
 and above the division of governmental powers in such man- 
 ner as to furnish separate departments to operate as a check 
 on each other, the framers of the constitutions were so jealous 
 
UNITED STATES 835 
 
 of their personal rights and so fearful of the tendency, al- 
 ways and everywhere manifested under established govern- 
 ments, for officials to encroach on the rights of the people, 
 that Bills of Rights, or Declarations of Rights, were incorpo- 
 rated in most of the constitutions, usually appearing as the 
 first part. These Bills or Declarations are in all cases in- 
 tended as limitations on the powers and functions of govern- 
 ment and reservations to the people of full liberty of action 
 in those particulars in which the state has no concern. This 
 idea is not expressed in direct terms in any of the constitu- 
 tions made prior to the close of the revolutionary war, but 
 Section 46 of the Constitution of Pennsylvania of 1776 reads : 
 
 "The declaration of rights is hereby declared to be a part 
 of the constitution of this commonwealth, and ought never 
 to be violated on any pretense whatever." 
 
 In the present constitution of that state adopted in 1873 
 tlie idea is thus clearly and forcibly expressed in the last sec- 
 tion of the Declaration of Rights, 
 
 "To guard against transgressions of the high powers 
 which we have delegated, we declare that everything in this 
 article is excepted out of the general powers of government, 
 and shall forever remain inviolate." 
 
 The constitutions of Florida, Alabama, Delaware, Ken- 
 tucky, Texas and North Dakota contain either identical or 
 similar language. In some states the framers of the consti- 
 tutions have seemed more fearful that the bill of rights might 
 be construed as a statement of all the reserved rights of the 
 people, and therefore a limitation on them, and have inserted 
 the following clause (copied from the constitution of Mary- 
 land of 1867) : 
 
 "This enumeration of rights shall not be construed to im- 
 pair or deny others retained by the people." 
 
 The same or similar language occurs in the last constitu- 
 tions of California, Colorado, Iowa, Kansas, Louisiana, 
 Maine, Mississippi, Missouri, Nebraska, Nevada, New Jersey, 
 North Carolina, Oregon, Rhode Island, South Carolina, Vir- 
 ginia, Idaho, Montana, Utah, Wyoming and Washington. 
 In the constitution of Kansas and some other states there is 
 
836 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 added ''and all powers not herein delegated shall remain with 
 the people." There is some diversity in the statement of 
 these rights in the different constitutions, owing to a diversity 
 of conditions. The tendency of late has been toward brevity. 
 The main purport of all of them is to make a reservation of 
 all political power in the people, except as specifically dele^ 
 gated, to guarantee freedom from arrest, except for lawful 
 cause, freedom of speech, religious liberty, the right to bear 
 arms, exemption of property from seizure or search, except 
 on lawful process, trial by jury, the writ of habeas corpus, 
 freedom of the press, no taxation without representation, the 
 right to peacefully assemble, consult and instruct their rep- 
 resentatives, and to prohibit exclusive privileges, hereditary 
 titles, the suspension of laws, arbitrary arrests, the exaction 
 of excessive bail, general search warrants, standing armies 
 in time of peace, perpetuities and monopolies, hereditary 
 honors, privileges or emoluments, and ex post facto laws, and 
 to subordinate the military to the civil power. These funda- 
 mental ideas found vigorous expression in the earliest con- 
 stitutions and have not been greatly extended or improved in 
 later ones, that of North Carolina of 1776 being perhaps as 
 clear and strong as any other. Marked changes have been 
 made in the terms of office and modes of electing the executive 
 and judicial officers. Members of the legislature are still 
 chosen in accordance with substantially the same principals 
 and in much the same manner as at first, but there has been 
 a tendency to lengthen the official term, and in many states 
 to have less frequent sessions. Under the first constitutions 
 members of the legislature were generally elected annually, 
 holding for the year only. Under the latest constitutions, 
 members of the most numerous body, usually called the 
 House of Representatives, are now chosen annually in nine 
 states and for terms of two years in all the other states. 
 Senators are elected for one year only in four states, namely, 
 Connecticut, Massachusetts, Maine, and Rhode Island, for 
 two years in fourteen states for three years in one. New 
 Jersey, and for four years in twenty-nine states. The term 
 of office of the governor is one year only in the four New 
 
UNITED STATES 837 
 
 England states last named, it is two years in twenty states, 
 three years in one. New Jersey, and four years in twenty- 
 three states. In the early days substantially all the other 
 state executive officers were appointed by the governor or' 
 elected by the Legislature. Most of the later constitutions' 
 provide for the election of some other state officers by the 
 people, usually including Secretary of State, Treasurer, Audi- 
 tor, Attorney-General, Superintendent of public instruction 
 and in some states Surveyor-General. The governor is now 
 elected by direct vote of the people in all the states, and in 
 most, if not all of them, a Lieutenant Governor is also so 
 elected. Thus not only the governors but the principal heads 
 of executive departments are chosen directly by the people 
 by ballot. In England and in the colonies, except as stated, 
 there was no balloting by all the people for executive or other ' 
 state officers, popular elections being confined to compara- '' ' 
 tively small districts. 
 
 In England, where the judges have always been appointed 
 by the king, it was thought that the independence of the' 
 judiciary would be secured and the administration of justice ■ 
 improved by giving the judges a life tenure of office with a ' 
 fixed salary assured, and this was done by Parliament with' 
 this end in view. In the colonies before the revolution, there 
 was the same desire for an independent judiciary and the! 
 same means was adopted to secure it. The effect of the 
 difference between the appointive system in England and the^ 
 elective system in America was not at first perceived. The ■ 
 judges were appointed by the governor or chosen by the'- 
 legislature and held during good behavior. This system is * = 
 still preserved in the appointment of the judges of the United'; 
 States and in their tenure of office. It has since been per-'' 
 ceived that there is a wide difference between independence! ' 
 of the crown and independence of the people. Under the' 
 English system life tenure tended to judicial independence 
 and afforded a check on the exercise of arbitrary power by ' 
 the king; under the American it tends to independence of'^ 
 the people and the exercise of arbitrary power by the judges, 
 and to judicial favoritism. It fills the bench with men too ' 
 
838 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 old for usefulness and too much attached to all that is bad 
 in the law and the system of administering it to admit of a 
 progressive administration of justice by them. These con- 
 siderations have not escaped the attention of the framers of 
 the new state constitutions, and in all the new states the 
 judicial offices have been made elective for limited terms. 
 In most of the original states a similar change has been made 
 under later constitutions. There is still what amounts prac- 
 tically to life tenure in Delaware, Florida, Massachusetts, 
 New Hampshire and Rhode Island. The terms in the other 
 states vary from two years in Vermont to twenty-one in 
 Pennsylvania, for the judges of the court of last resort, the 
 term most common being six years in nineteen of the states. 
 The principle of popular election of judges has not yet been 
 universally adopted. In nine states the judges are still ap- 
 pointed by the governor, confirmation by the senate being 
 required in eight of these, in five they are chosen by the 
 Legislature, and in the remaining thirty-four including all 
 the most populous states, they are elected by the people. The 
 institution of a council of state, apart from the heads of 
 departments of the state government, which obtained at the 
 time of the formation of the state governments, has nearly 
 disappeared in that form, but the chief executive officers 
 form a kind of executive council for certain administrative 
 purposes. The evolution of state constitutions to their present 
 type of remarkable uniformity, when differences of condi- 
 tions are considered, has been effected in some states by 
 amendment only of the early constitutions, submitted to the 
 people for ratification, and in others by conventions called 
 to frame new constitutions. Among the best provisions of 
 all the constitutions are those which provide for their own 
 amendment or abrogation whenever the people see fit to make 
 changes. More than a majority vote of the legislature is 
 generally required, usually two-thirds, to submit an amend- 
 ment or call a convention, but this restriction has not had 
 the effect to prevent frequent alterations of the fundamental 
 laws of the states. Of the thirteen original states Massachu- 
 setts alone still retains its first constitution, but this has been 
 
UNITED STATES 839 
 
 amended many times. In Connecticut the state government 
 continued under the colonial charter till 18 18, when a new 
 constitution was framed and adopted, this, however, had by 
 1875, been amended in twelve different years. Rhode Island 
 adopted its first constitution in 1842 and has not amended it 
 many times. New Jersey adopted a new constitution in 1844. 
 Delaware, New Hampshire and New York have each had 
 three constitutions, and New York has also adopted numer- 
 ous amendments. North Carolina, Pennsylvania and Maine 
 have each had four, Virginia and Georgia six and South 
 Carolina seven. The number for the last named states and 
 North Carolina is due in part to the Civil War, which oc- 
 casioned new constitutions at the commencement and after 
 the conclusion of the war. This occurred in all the seceded 
 states. Other northern states, admitted after the Revolu- 
 tionary War, have shown almost equal activity in remoulding 
 their fundamental laws. The early types, of which that of 
 Massachusetts is the most full, by the declaration of rights, 
 exclude certain matters from governmental interference, di- 
 vide the powers into three coordinate branches, and impose 
 certain restrictions on the action of the Legislature. The 
 manner of electing officials and their duties are regulated and 
 the methods to be pursued in the enactment of laws. That of 
 Massachusetts devotes space to educational institutions and 
 to forms of official oaths and religious declarations, requiring 
 all state officers to declare that they believe the Christian re- 
 ligion and are possessed of the amount of property required 
 as a qualification for the office. A property qualification was 
 required by most of the early constitutions to entitle a person 
 to vote. In Massachusetts he must have a freehold estate 
 yielding £3 per year or £60 of other property. It is some- 
 times asserted that the southern states were more aristocratic 
 in their ideas than the northern ones, but this does not find 
 expression in their constitutions. In Pennsylvania and North 
 Carolina it was only required that the voter should have 
 resided in the state a year and paid a tax, in Georgia he must 
 have £10 value or be a mechanic with six months' residence, 
 in Maryland fifty acres of land or £30 value. ' 
 
840 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 By new constitutions or amendments to the old the right 
 of suffrage has been extended in most of the states to all 
 males twenty-one years old, who have resided in the state the 
 requisite time, six months or a year in most cases, and who 
 are not criminals or public charges or non compos mentis. 
 Most states allow foreign born men, who have declared their 
 intention to become citizens of the United States, to vote. 
 There is usually a requirement that the person offering to 
 vote shall have resided in the voting district a prescribed 
 length of time. 
 
 The tide continued steadily in the direction of extension 
 of the elective franchise till very near the close of the nine- 
 teenth century. The last state to do away with its require- 
 ment of a property qualification was Rhode Island, which in 
 1888 changed its provision so as to take away the require- 
 ment, except in voting for city council and on the expendi- 
 ture of money in the towns, where it is still retained. At that 
 date the only cases of further restrictions were those requir- 
 ing the voter to have paid taxes in Delaware, Georgia, Penn- 
 sylvania, Tennessee and Massachusetts, and that the voter, 
 except under certain stated conditions excusing it, should be 
 able to read. The peculiar situations in some of the southern 
 states, where the fear of negro rule has ever been present 
 since the adoption of the fifteenth amendment to the Consti- 
 tution of the United States, has led to the adoption of peculiar 
 constitutional provisions, designed to take away the elective 
 franchise from the negroes without violating the fifteenth 
 amendment. In this, South Carolina, where the colored 
 population is most largely in the majority, took the lead, and 
 in 1895 adopted a new constitution, which requires that 
 the voter must have resided in the state two years, in the 
 county one year and in the polling precinct four months be- 
 fore election, and have paid a poll tax. He must be regis- 
 tered, and to obtain registration must be able to read any 
 section of the state constitution submitted to him by the regis- 
 tration officer, or understand and explain it when read to him 
 by the officer. After 1898 he must be able to both read and 
 write any section of the constitution submitted to him, or 
 
UNITED STATES 841 
 
 must own and have paid taxes on property assessed at $300. 
 There are fifteen sections in the article on Right of Suffrage. 
 The lead of South Carolina was followed in Louisiana, where 
 the negroes also constitute a majority, and in 1898 a consti- 
 tution was adopted, requiring that a voter be able to read 
 and write or be a bona fide owner of property assessed at 
 $300, but all persons, who were voters under the laws of the 
 state where they resided on January i, 1867, ^^^ ^-^l their 
 lineal descendants, are exempted from these requirements 
 and may vote without regard to either of them. Substan- 
 tially the same provision is made in the constitution of North 
 Carolina, adopted in 1902. As negroes were not entitled to 
 vote in 1867, i^ practically excludes the illiterate negroes and 
 admits the illiterate whites, without doing so in express terms. 
 The great question with reference to the elective franchise, 
 now being most generally considered, is concerning the right 
 of females to vote. Utah, Idaho and Wyoming, by constitu- 
 tions framed in 1889, have provided that the right to vote 
 shall not be denied on account of sex. In an earlier consti- 
 tution, that of 1876, Colorado had provided that Ihe Legis- 
 lature might permit women to vote. In 1912 California and 
 Kansas adopted amendments giving women the right to vote. 
 The constitution of South Dakota allows women to vote at 
 school elections, and the constitutions of other states permit 
 the legislature to extend to them the right to vote at school 
 elections. The modern state constitutions go more into mi- 
 nute details than the earlier ones, and the subjects of taxa- 
 tion, municipal .organization, private corporations, and 
 education have received much attention. Nowhere else has 
 the desire for internal improvements, especially for the con- 
 struction of railroads, been such a passion among the people. 
 From the earliest days of railroad building to the present 
 time there has been a tendency to burden states, counties and 
 municipalities with indebtedness, often to a ruinous amount, 
 to obtain new railroads, and, when the full burden was felt, 
 to attempt to repudiate it. Bonds issued for these purposes 
 have been and still are heavy burdens on a large part of the 
 country. In the early stages of railroad building state aid 
 
842 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 was often granted and in some instances construction was 
 undertaken by the state. There was also, prior to the Civil 
 War and the passage of the national banking act, a strong 
 tendency to establish state banks, authorized to issue bills 
 based to a greater or less degree according to the views of 
 the Legislature on the credit of the state. About 1850, some 
 of the states, which had suffered most from the reckless use 
 of credit, commenced to adopt constitutional restrictions, 
 thus the constitution of Ohio adopted in 1851 provides, 'The 
 credit of the state shall not in any manner be given or loaned 
 to, or in aid of, any individual, association, or corporation 
 whatever; nor shall the State ever hereafter become a joint 
 owner or stockholder in any company or association in this 
 state or elsewhere, formed for any purpose whatever." The 
 state was also prohibited from assuming the debts of any of 
 its subdivisions, or of any corporation whatever, unless to 
 repel invasion or suppress insurrection, and counties, cities 
 and towns were prohibited from becoming stockholders in 
 corporations or loaning their credit to aid them. These pro- 
 visions indicate the prevalence of the instance thereby pro- 
 hibited. The newer states, however, have exhibited the old 
 passion for public improvements, especially railroads, and 
 some of them still permit a limited amount of aid to be voted 
 by counties, cities and townships for the construction of 
 railroads. 
 
 The regulation of the governments of cities is a problem 
 not very definitely solved as yet. It is a subject of constant 
 legislation and change, wherever there are large cities, but is 
 seldom treated in much detail in state constitutions. The 
 general framework of the governmental system has not been 
 greatly changed. All the states are divided into counties, the 
 counties generally into towns or townships and the townships 
 into school and road districts. These are the only general 
 divisions of the territory for administrative purposes. Con- 
 gressional, judicial, senatorial, representative and other dis- 
 tricts are established for the election of officers and to define 
 their territorial jurisdiction. The principle of local self- 
 government is applied, subject to legislative and judicial 
 
UNITED STATES 843 
 
 supervision. Each county has its board charged with super- 
 vision of roads, bridges, county buildings and county inter- 
 ests. In each a court of general original jurisdiction is held 
 at stated times. Each county elects its officers, including 
 generally in addition to the county board, a sheriff, treasurer, 
 recorder of deeds, superintendent of schools, coroner, at- 
 torney and county clerk. Other county officers are sometimes 
 added. In the New England States, New York and other 
 states closely modelling their township organizations after 
 them, the town officers are more numerous and their duties 
 more important than in the southern and some of the western 
 states, where the tendency is to trust more to the county 
 boards. The school districts are very important divisions and 
 have charge of their own schools, which are generally looked 
 after by a district board in accordance with specific directions 
 given by the voters at a general meeting. The taxes for 
 school purposes are usually voted at the annual meeting and 
 the teachers are employed by the board. 
 
 At the time of the Revolution the prevailing opinions with 
 reference to the distribution of governmental powers were, 
 that usurpation of authority and oppressive exercise of it 
 were most to be apprehended from executive officers, that 
 the legislative body, made up of representatives chosen di- 
 rectly by the people, could best be trusted to guard their in- 
 terests and should be the repository of the most important 
 delegated powers. The judiciary was not then looked upon 
 as more than a department for the adjustment of contro- 
 versies between private persons, municipalities and states and 
 for the trial of persons charged with crimes. That it would 
 ever supervise, control or nullify legislative action was not 
 thought of, because no such power had theretofore been ex- 
 ercised in England or America by the courts, nor is there yet 
 any such thing as an unconstitutional act of the British Parlia- 
 ment. But the idea of placing limitations on the powers of 
 government necessarily carried with it limitations on the 
 powers of the Legislatures, then regarded as of such pre- 
 ponderating influence and importance. The bills of rights 
 are all limitations on the powers of all departments of gov- 
 
844 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ernment, as well as mandatory in directing the performance 
 of certain official duties. 
 
 Throughout colonial times the legislatures had always 
 stood as the champions of the people, representing their in- 
 terests and urging their claims. The governors, and those 
 holding office, by appointment from them, represented the 
 
 . British government. It was through the governors that en- 
 forcement of the acts of Parliament and the administrative 
 policy of the ministry was attempted. When the change was 
 made, which took away the connection between the governors 
 and the British crown, the people did not at once get rid of 
 their antipathy to governors nor determine to invest them 
 
 ^ with extensive power. There has, however, been a decided 
 
 , tendency to place more power in the hands of the governors. 
 By the original constitutions the governors had no part in 
 
 , the making of laws and no veto on the action of the legis- 
 lature in Virginia, North Carolina, New Hampshire, New 
 Jersey, Delaware, Georgia or Maryland. In Massachusetts 
 the governor might object, and a two-thirds vote was then 
 required to pass the act. In New York the governor, chancel- 
 lor and judges of the Supreme Court, or any two of them, 
 
 . were required to revise bills and might object to them, when 
 a two-thirds vote was required for their passage. In Con- 
 necticut and Rhode Island, under their charters, the gover- 
 nors were a part of the law-making power. In South Carolina 
 the governor was given an absolute veto under the constitu- 
 tion of 1776. Under the existing constitutions the governor 
 has no absolute negative on legislation in any state, but in all 
 but Delaware, North Carolina, Ohio and Rhode Island, he 
 may return the bill with his objections, when if it receives the 
 requisite majority, it may become a law. The vote required 
 varies from a majority of all the members elected to each 
 house, to two-thirds of all elected, the latter being the usual 
 requirement. In Vermont the objection of the governor sus- 
 pends the operation of the law till the next session of the 
 Legislature. Of the early constitutions that of Massachusetts 
 is the longest and is divided into six chapters, preceded by the 
 Declaration of Rights, which contains thirty sections or Arti- 
 
UNITED STATES ■ 845 
 
 cles, as they are termed. Chapter I relates to the Legislature, 
 confers legislative power on the senate and house of repre- 
 sentatives, prescribes the manner of their election, time of 
 meeting and number required for a quorum and exempts 
 members from arrest going to, returning from and attending 
 the assembly. Chapter II prescribes the manner of electing 
 the governor, makes him commander-in-chief of the army 
 and navy, and confers the pardoning power and power to 
 appoint all judicial and executive offices, with certain named 
 exceptions. All public moneys are required to be paid out 
 only on his warrants. A lieutenant governor and a council 
 of nine, to advise the governor, are also provided for in this 
 chapter and the mode of their election pointed out. A secre- 
 tary, treasurer, receiver general, commissary general, notaries 
 public and naval officers are required to be chosen annually 
 by the legislature by joint ballot. Chapter III treats of the 
 judicial power and makes the terms of judicial officers during 
 good behavior, except justices of the peace, whose terms are 
 seven years. Article 5 of this chapter reads: "All causes 
 of marriage, divorce and alimony and all appeals from the 
 judges of probate shall be heard and determined by the gov- 
 ernor and council until the legislature shall, by law, make 
 other provision." Chapter IV provides for the election of 
 delegates to congress by joint ballot of the Legislature. 
 Chapter V relates to the University of Cambridge, confirms 
 its charter rights, and makes it the duty of legislatures and 
 magistrates to "cherish the interests" of schools, learning, 
 arts, science, etc. Chapter VI contains long forms of official 
 oaths and declarations, prohibits any person from holding 
 more than one of the principal offices named, adopts the laws 
 theretofore adopted, used and approved in the courts, requires 
 that the writ of habeas corpus be made free and cheap, and 
 prohibits its suspension, except on urgent occasions and for 
 not more than twelve months. This old constitution is the 
 only one the state has ever had, but it has been amended 
 from time to time. With all its amendments it lacks much 
 of the completeness of the later constitutions, of which per- 
 haps a fair type is that adopted in Missouri in 1875, which is 
 
846 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 divided into fifteen articles. Art. i confirms the existing: 
 boundaries of the state and makes all rivers bordering on the 
 state free public highways to all citizens of the United States- 
 Art. 2, is the Bill of Rights with thirty-two Sections of the 
 usual purport. Art. 3 distributes the powers of government 
 among the three departments. Art. 4, vests the legislative 
 power in the general assembly, provides for the apportion- 
 ment of the state into senatorial and legislative districts, fixes 
 the qualifications, compensation and terms of office of sena- 
 tors and representatives, provides the manner of organization 
 of the houses, requires a majority of all for a quorum, regu- 
 lates the procedure in the passage of bills with minuteness^ 
 requiring the vote on final passage to be taken by yeas and 
 nays and recorded on the journal. Then follow unusually 
 severe restrictions on the power of the legislature to appro- 
 priate money, requiring the payment of the public debt to be 
 first provided for, appropriations for school purposes next^ 
 and pay of the assembly last. The power to create a public 
 debt is limited to unforeseen emergencies, and the legislature 
 is prohibited from lending the credit of the state to aid any 
 person or corporation or give away public money, except in 
 case of a public calamity, or to authorize any county or 
 municipality to do so or to become a stockholder in any cor- 
 poration, and the assembly is prohibited from subscribing for 
 stock in any corporation. The assembly is also prohibited 
 from passing local or special laws for a long list of enumer- 
 ated purposes, including the granting of charters and cor- 
 porate privileges. This constitution is of the most extreme 
 type in the strictness with which it restrains the action of the 
 Legislature. Article 5, relates to the executive departments 
 and prescribes the terms of office, manner of election, powers 
 and duties of the governor and members of the executive 
 department. Article 6, relates to the Judicial Department, 
 prescribes the powers and duties of the different courts, the 
 number and manner of election of the judges and contains 
 forty-four sections. Article 7. Authorizes the impeachment 
 of all the principal executive and judicial officers by the house 
 and their trial by the senate, but limits the judgment to re- 
 
UNITED STATES 847 
 
 moval and disqualification from holding office. Article 8. 
 Prescribes the qualifications of electors and requires all elec- 
 tions by the people to be by ballot and all elections by repre- 
 sentatives to be viva voce. Article 9 relates to counties, cities 
 and towns and provides for their organization and govern- 
 ment. Cities of 100,000 population or more are authorized 
 to frame their own charters, submit them to the people and 
 if ratified by their votes the charter becomes operative. Al- 
 ternative sections may be submitted and voted on separately 
 by the voters without prejudice to the others. Article 10 treats 
 of revenue and taxation and is very rigid in its limitations. 
 The legislature can only impose taxes for general purposes, 
 powers of local taxation can only be exercised by the coun- 
 ties, cities, towns and municipalities for which the moneys 
 raised are to be expended. Taxes are required to be uniform 
 and no property can be discharged from its equal share of 
 a public burden, except public property which is made exempt 
 from all taxes. The creation of municipal indebtedness and 
 the amount of the annual tax levy in counties, cities, towns 
 and school districts is strictly limited. No other state has 
 such full or rigid restrictions in these respects. Article 11 
 in its first section expresses modern American views on the 
 subject of education. "A general diffusion of knowledge 
 and intelligence being essential to the preservation of the 
 rights and liberties of the people, the general assembly shall 
 establish and maintain free public schools for the gratuitous 
 instruction of all persons in this state between the ages of 
 six and twenty." Separate schools for children of African 
 descent are required. Provision is made for the maintenance 
 of the State University and the investment of the public 
 school funds. Article 12 deals with corporations and pro- 
 hibits their creation by special acts or the conferring of 
 special powers, and the issuing of stock except for a valuable 
 consideration received. Railroad corporations are separately 
 treated and are prohibited from discriminating between 
 patrons, from consolidating with parallel or competing lines 
 and from granting passes to members of the assembly, board 
 of equalization, or any State, county or municipal officer. 
 
848 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 The acceptance of a pass forfeits the office. The creation of 
 a state bank is prohibited and any law authorizing the crea- 
 tion of banking corporations must be submitted to a vote of 
 the people before going into effect. It is made a crime for 
 any bank officer to assent to the receipt of deposits after 
 knowledge of the insolvency of the bank. The legislature* 
 cannot remit the forfeiture of a charter, and the police power 
 of the state shall never be abridged or so construed as to 
 permit corporations to conduct their business in such manner 
 as to infringe the equal rights of individuals or the general 
 well-being of the state. An important provision is that which 
 authorizes the condemnation, under the power of eminent 
 domain, of the property and franchises of corporations, as 
 well as individuals, and provides that the right of trial, by 
 jury shall remain inviolate in all cases where corporations are 
 interested in the determination of claims for compensation in 
 the exercise of the right of eminent domain. This provision 
 appears, in almost identical language, in the constitution of 
 Illinois of 1870, of Pennsylvania of 1873 and Arkansas of 
 1874, and its importance can only be measured by the grow- 
 ing sentiment in favor of public ownership and operation of 
 public utilities, now mainly in the hands of private corpora- 
 tions. The extension of the principle of local self-government 
 logically lies in the direction of its application to great com- 
 binations to carry on a business which requires large capital 
 and many employees. It is a little surprising not to find the 
 provision, common to most state constitutions since the de- 
 cision of the Supreme Court in the Dartmouth College case, 
 that corporations may be created only by general laws which 
 may be amended or repealed. The remaining articles of this 
 constitution are Article 13 which treats of the organization 
 of the militia. Article 14 with miscellaneous provisions, pro- 
 hibiting civil or criminal proceedings growing out of acts 
 done in the military service during the civil war under the 
 authority of either the Federal or Confederate government, 
 disqualifying duelist from holding office, also any person 
 holding an office under the United States, prohibiting the in- 
 crease of the compensation of officers during their terms of 
 
UNITED STATES 849 
 
 office or extending their official terms, prohibiting lotteries, 
 and making some minor regulations. Article 15 points out 
 the mode of amending the constitution, requiring only a ma- 
 jority of the legislature to submit and a majority of the 
 people to adopt an amendment. Many amendments have 
 been adopted, including one allowing three- fourths of the 
 jurors to render a verdict in a civil case. 
 
 The new constitution of Illinois adopted in 1870 is not so 
 long but covers much the same ground, having fourteen arti- 
 cles, among which those relating to Revenue, Counties and 
 Corporations are quite full. A separate article is devoted to 
 warehouses, a subject not elsewhere of so much importance, 
 Chicago being the great grain market and storage point. The 
 constitution of Pennsylvania of 1873 is not quite so long as 
 that of Illinois, but is divided into eighteen Articles. Sub- 
 stantially the same ground is covered though with less particu- 
 larity. Though the state has very large cities the article on 
 cities and city charters has but three short sections, authoriz- 
 ing cities to be chartered when the people vote in favor of it 
 and have 10,000 inhabitants, requiring that debt shall not be 
 created by any municipal commission, except in pursuance of 
 an appropriation previously made, and that an inviolable 
 sinking fund shall be created for the payment of funded 
 debts. Separate articles are devoted to Private Corporations, 
 Railroads and Canals. The granting of passes, except to em- 
 ployees, is prohibited, but no penalty is attached to its 
 violation. 
 
 State constitutions, except in their distribution of the 
 powers of government, cannot be said to have reached any 
 settled type. The rapid growth of cities and the increasing 
 importance of corporations, furnish subjects not yet satisfac- 
 torily adjusted. 
 
 The general idea of the governmental system of the United 
 States is now quite fully and logically carried into practical 
 operation in the states and nation. Matters of general con- 
 cern to all the states are entrusted to the Federal Government. 
 The extreme conservatism of the provision of the Constitu- 
 tion of the United States on the subject of amendments 
 
Sho EVOLUTION OF GOVERNMENTS AND LAWS 
 
 seriously retards the correction of its defects. The require- 
 ment of a two-thirds vote of each branch of Congress and 
 ratification by three-fourths of the states, seems an unrea- 
 sonable restriction on the will of majorities. The constitution 
 requires the House of Representatives to be elected by the 
 people of the states, and the members are now usually chosen 
 by districts, the boundaries of which are fixed by the state 
 legislature, though in some cases they are elected by the elect- 
 ors of the whole state. The Constitution of the United States 
 provides for the election of president and vice-president by 
 electors chosen for that purpose, but the people have adopted 
 a system which renders the work of the electors a mere mat- 
 ter of form. The electors are named by party conventions 
 held in the several states and are expected to vote for the 
 candidate named by that party in its national convention. No 
 instance has yet occurred in the history of the republic of a 
 presidential elector betraying his party and voting for a differ- 
 ent candidate. No official of a state or the nation is more 
 truly selected by the people than the president. The great 
 powers conferred on him and the exalted rank of the office 
 challenge the attention of all the people to the merits of pro- 
 posed candidates, and personal worth is an important element, 
 though not equal in its influence on the voters to that of the 
 party name. 
 
 It is a source of great satisfaction to Americans that the 
 presidential office has always been filled by a man of high 
 character and good ability. The names of most of the presi- 
 dents would have appeared among the illustrious men of 
 the country, if they had not been chosen to that high office. 
 The masses of the people take more pride in the president 
 than in any other public official and, as a rule, have been bet- 
 ter satisfied with the manner in which he has discharged 
 his duties. More than a century of elective presidents has 
 confirmed the wisdom of trusting the people to choose their 
 chief magistrate. 
 
 At the time of the Revolution the judiciary took no leading 
 part in public affairs. From the earliest times of the British 
 monarchy they were appointees of the crown. When the 
 
UNITED STATES 851 
 
 Constitution of the United States was framed, the existing 
 system was continued without change except of the appointing 
 power. Subsequent experience has however disclosed its de- 
 fects, and the states have substituted a judiciary elective for 
 fixed terms in place of an appointive one for life. 
 
 The constant tendency to restrict the powers of the legis- 
 latures, so strongly manifested in the state constitutions, has 
 not been exhibited with reference to executive departments, 
 which have been multiplied and their functions extended, with 
 no added restrictions of note beyond making all the chief 
 officers in the states elective. The legislatures have generally 
 been relied on to provide all necessary checks on executive 
 action. 
 
 As the power of the- legislatures has been restricted by 
 constitutional inhibitions, the power of the courts has grown, 
 though without any express constitutional authority. The 
 system of written constitutions makes a division of the laws 
 into constitutional, which may not be violated by any one 
 and can only be changed by the people, and legislative, which 
 the legislature may change at will. In the early days the 
 question arose whether a court had the right to declare an 
 act of congress or of a state legislature void, if in conflict 
 with the constitution, and it was very logically held that it 
 had. Though in the early history of the country the courts 
 were exceedingly loth to nullify legislative acts, the constant 
 exercise of the power to do so has established a practice, now 
 very prevalent, and no act of the legislature, materially af- 
 fecting great private interests, is now regarded as law till its 
 constitutionality has been passed on by the court of last resort. 
 The Federal Courts are especially free in disregarding and 
 nullifying acts of state legislatures on constitutional grounds, 
 and have even gone so far, in construing acts restricting the 
 charges of public service corporations, as to sit in judgment 
 on the reasonableness of the rates* established by the legis- 
 lature, thus substituting their own judgment in a matter as 
 to which minds naturally differ, for that of the law-making 
 body. It apparently has escaped the attention of constitution 
 makers, that they were thus so greatly exalting the power of 
 
8S2 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the courts. As the courts pass judgment in most of the states 
 only on questions arising in cases coming before them, and 
 never on abstract questions of law, it often happens that an 
 act of the Legislature remains for years printed in the statute 
 books as a valid enactment, and is then declared by the courts 
 of no effect. Neither the common citizen nor the professional 
 lawyer can ever tell, with absolute certainty what a court may 
 determine in such a case. It is always presumed that the 
 members of the Legislature are as familiar with the constitu- 
 tion under which they act as the courts, and that they as 
 honestly observe its limitations, yet the courts may now be 
 relied on to nullify a considerable percentage of legislative 
 acts affecting property rights. No such inconvenience at- 
 tends the system of any other great country. It grows out 
 of the desire to restrict governmental powers, yet it has re- 
 sulted in exalting the power of that branch of the government 
 least subject to popular control, and in the case of the Federal 
 Judiciary, altogether beyond the peoples' chastening hand. 
 It would seem that some system should be adopted under 
 which all acts of Congress and state Legislatures will pass 
 scrutiny and judgment as to their constitutionality, before 
 they are given effect, and that thereafter they shall not be 
 open to challenge on constitutional grounds. The courts of 
 law cannot be always trusted to be the final arbiters, not 
 merely as to the powers of the legislative and executive de- 
 partments of governments, but as to their own also. Perhaps 
 it might be well to have all constitutional questions of this 
 kind passed on by a tribunal representing all three depart- 
 ments of the government, or by an independent one named 
 by the people. The constitution of Belgium provides that 
 authoritative interpretation of the law belongs only to the 
 law-making power. 
 
 The experience of 126 years under the United States Con- 
 stitution, during which the territory has been extended not 
 only across the continent, and over Alaska to the Polar Sea, 
 but also into the Asiatic Islands, the number of states in- 
 creased from thirteen to forty-eight, the population from 
 3,000,000 to more than 93,000,000 exclusive of the Philippine 
 
UNITED STATES 853 
 
 Islands with a yearly influx now by immigration running as 
 high as 1,000,000, made up of people of all nations, and the 
 strain of a terrific civil war, have not pointed out any radical 
 defect in the general framework of the republic. Improve- 
 ments can always be made in any government, but the system 
 itself points out how they may be made peacefully. The 
 most surprising thing connected with American history is 
 that so little modification of the constitution resulted from 
 the Civil War. The seceded states were simply brought back 
 into more harmonious relations with the others. The frame- 
 work of the state governments as above pointed out has under- 
 gone far greater changes, quite uniformly in the direction of 
 an extension of the principle of local self-government. The\ 
 Federal Government is one of limited powers, confined to \ 
 matters of general concern. The state governments, while 
 restricted in their functions in certain particulars by the Con- 
 stitution of the United States, and still more by the state 
 constitutions, yet have a far wider field of action and affect / 
 the interests of their citizens at many more points. It is the V 
 state Legislature that has power to pass laws defining crimes J 
 in general, and fixing the punishments for them, and that / 
 regulates the property rights of its citizens. At first the I 
 legislatures were given power to regulate local affairs by \ 
 special acts, and some of this power is still retained and ex- ) 
 ercised, but the tendency still seems to be in the direction of-^ 
 further constitutional restrictions on the state legislatures and 
 greater local independence. State legislatures everywhere 
 are subjects of severe criticism. They are always surrounded 
 by powerful corrupting influences. The railroad, insurance 
 and other great corporations are always either asking legis- 
 lation in their special interest or striving to prevent acts cur- 
 tailing their privileges or casting burdens on them. This leads 
 to the custom of granting free passes and other special favors 
 to the members and to charges of bribery with money, doubt- 
 less sometimes based on facts. Many efforts have been made 
 to remedy these evils, and the use of passes has been greatly 
 curtailed. So long as such great interests are in private 
 hands, managed for personal gain, it is doubtful whether any 
 
354 EVOLUTIOX OF GOVERXMEXTS AXD LAWS 
 
 perfect remedy can be found. State legislatures are not so 
 vile however as they are sometimes painted. They are usually 
 made up of very fair representatives of both the intelligence 
 and the integrity of the people. The State executive officers 
 have generally been men of fair character, who have man- 
 aged their offices to the satisfaction of the public. Some 
 scandals are always incident to the management of the great 
 charitable and penal institutions, and there are sometimes 
 charges of cruelty in prisons and asylums, but the rule is that 
 prisoners and patients are treated kindly, and their needs well 
 and even generously supplied. 
 
 Next in order below the state government comes the county. 
 All the states are divided into counties varying in number 
 from three in Delaware to, two hundred and forty-six in 
 Texas. The size of counties is far more nearly uniform than 
 that of the States, being generally about as large as will admit 
 of driving with teams from every part to a central point in 
 a day. Some of the western states, however, where popula- 
 tion is very sparce, have very large counties, many times 
 greater than such states as Rhode Island and Delaware. Each 
 county has its court house and its quota of county officers 
 occupying it. Here at stated times the great court of general 
 original jurisdiction is held, commonly termed either the dis- 
 trict or circuit court; the probate court and special courts in 
 the more populous counties. The representative body trans- 
 acting the county business, usually possessing a mixture of 
 legislative, executive and judicial functions, also meets here 
 at stated times. In New England, New York and other nor- 
 thern states these bodies are made up of members elected by 
 the towns, and are called the Boards of Supervisors in New 
 York. In Ohio and many other states the members are elected 
 by districts and the board is made up of a much smaller num- 
 ber, three only in Kansas, and are called Boards of County 
 Commissioners. In the south and some western states they 
 are chosen in the same manner, but the members are called 
 judges and the body is styled the County Court. There is 
 much diversity in the scope of the duties and powers of these 
 tribunals, which are almost if not quite universally fixed by 
 
UNITED STATES 855 
 
 the legislature, rather than by constitutional provision. In 
 the East the laying out and repairing of roads and the con- 
 struction and maintenance of bridges are generally under the 
 supervision of the towns, while in the West they are partially 
 or wholly under the direction of the county boards. The 
 maintenance of the courthouse and other county institutions, 
 the levying of county taxes and the expenditure of county 
 money are under the direction of this tribunal, and it stands 
 as the general representative of county interests. Each county 
 elects its own sheriff, whose principal functions are to serve 
 and execute the processes of the courts, of which he is the 
 chief executive of^cer, and to collect delinquent taxes. The 
 ofilice, though still important, does not rank as high as form- 
 erly in the colonies and in England. Each county also elects 
 its recorder of deeds, who records all instruments affecting 
 the title to land and mortgages on personal property and 
 such others as the law may require to be recorded. In Con- 
 necticut, and possibly some other of the eastern states, these 
 records are kept by the town clerks instead of a county officer. 
 There are usually also a county treasurer, clerk, coroner, 
 probate judge, superintendent of schools, surveyor, clerk 
 of the court and attorney. Other officers are sometimes 
 added. The county organization is of prime importance in 
 the actual operation of the governmental system. It is here 
 that the law is administered, and that the juries pass on the 
 facts in civil causes triable before them, and on the merits of 
 criminal prosecutions. The roads, bridges, local charities and 
 improvements of various kinds are mainly under county con- 
 trol. Except in counties containing large cities, the conduct 
 of county affairs is usually very closely watched by the people 
 and is in main quite satisfactory. Great abuses seldom exist 
 and when they do are soon remedied. 
 
 The importance of the towns or townships as municipal 
 organizations varies greatly. In the New England states in 
 Revolutionary times the towns were the political units. The 
 people gathered in their town meetings, consulted, took such 
 action as seemed advisable and selected their representatives 
 and agents to carry out their will. This system did not pre- 
 
856 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 vail in the South, where the county was the unit. At present 
 there is a tendency to approximate a common type, with 
 township organizations attending to the repair of roads and 
 bridges, the temporary rehef of the poor and some other 
 special matters. The most important function of the town 
 or township is in connection with the elections. There is 
 always one or more election precincts in each of them, and 
 the township officers are usually charged with the duty of 
 providing the polling places and making other necessary ar- 
 rangements for collecting the votes and forwarding the re- 
 turns. Each town has one or more justices of the peace, with 
 power to decide petty causes and issue warrants for the arrest 
 of persons charged with crime. Within the towns are road 
 and school districts. The system of repairing roads under 
 the direction of an overseer appointed for a small district, is 
 not generally satisfactory, owing to the unsystematic and 
 often shiftless manner in which the work is done. Where a 
 road poll tax is required or property tax is allowed to be 
 worked out, it often happens that the smallest fund is avail- 
 able for the districts requiring the largest expenditure, and 
 thus the roads are worked often to their injury where work is 
 not needed and left in bad condition in less rich or populous 
 districts. The tendency now is in the direction of larger 
 districts and a regular levy for road purposes. 
 
 The most important of all the functions of the state is that 
 connected with the education of the young. The system of 
 district schools is now substantially universal over the whole 
 United States. The whole country is divided into school 
 districts of such convenient size as will enable all the children 
 in it to attend easily; usually two miles is as far as any child 
 needs to go to reach the school house. The affairs of the 
 district are determined by the people in a general meeting 
 at which, in many states, women as well as men are now 
 allowed to vote. The size and cost of school buildings, the 
 number of teachers, the length of school terms and other par- 
 ticulars are generally determined by the people at the annual 
 district meeting. It is a noticeable fact, that in no other 
 public matter is so much liberality shown, and the school tax 
 
UNITED STATES 857 
 
 imposed on themselves by the voters is always the heaviest 
 of all borne by the people. Comfortable school buildings and 
 as good teachers as the district can afford are always de- 
 manded. This system of direct regulation of schools by the 
 people applies only to rural districts. In the cities, where 
 many teachers are required, the schools are in charge of 
 boards elected for that purpose. 
 
 In 1790 the urban population, inhabiting cities of 8,000 
 or more, is given as only three and three-tenths per cent 
 of the whole. New York City alone now contains more 
 people than there were in all the colonies at the date of the 
 adoption of the constitution. The problem of municipal gov- 
 ernment was not then one of great concern. It is now one 
 of the most complex that confronts the legislator. On the 
 farm or in the small town the family supplies most of its 
 wants in its own way. For water wells and cisterns are 
 dug or natural sprin'gs and water courses afford a supply. 
 Lights are supplied in a more or less primitive fashion, but 
 always by the individual in his own way. To communicate 
 with his neighbors and the outside world he formerly walked 
 or drove along the public highway. Now he uses the tele- 
 phone and rural mail service. No neighbor cuts off his light 
 or air by a new^ building, nor is he usually much affected by 
 what is done on his neighbor's ground. In the city condi- 
 tions are greatly changed. The individual must rely on 
 some one else to supply nearly all his wants. The universal 
 tendency of the city is to divide labor, specialize and become 
 dependent, each one on a multitude of others. Water, light, 
 heat, conveyance from point to point, means of communica- 
 tion and security against fire and floods, must all be provided 
 by some general agency, public or private. In rural com- 
 munities there are poor people, but none with inordinate 
 wealth. The city breeds the multi-millionaire and the multi- 
 tude of paupers. In the cities are to be found the dens of 
 the criminals, the filthy houses of prostitution, the conscience- 
 less gamblers and swindlers of all kinds. Selfishness and 
 vice grow up together, children of a common parent, though 
 one may dwell in a palace and the other in a wretched tene- 
 
858 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ment. In contrast with rural conditions the bulk of the 
 property is owned by the few and the great multitude work 
 for wages, live in rented houses, and have little or no pro- 
 vision made for a time of adversity. A marked character- 
 istic of the American city dweller is that he strives to appear 
 as well as his neighbor. He rents a more expensive house 
 and wears dearer clothing than his income warrants. His 
 economies if any are such as his neighbor cannot see. The 
 tendency of this mode of living is to produce a constant 
 strain for appearances, which results in duller moral percep- 
 tions and a debasement of ideals. The strength and safety 
 gained by self-denial and frank admission of the truth, are 
 sacrificed to a foolish desire to appear more prosperous than 
 he in fact is. This class of people of necessity are always 
 at someone's mercy, and generally become, if they do not 
 begin as, servants of others. The percentage of Americans, 
 who refuse to gain independence by the slow sure route of 
 industry and rigid economy, is distressingly large. The vain 
 hope of some stroke of fortune, which will make good all 
 that could be gained by thrift, keeps multitudes in poverty. 
 While these propensities play so important a part, the city 
 problem would not be nearly solved if they were eliminated. 
 It must be conceded that the satisfactory government of 
 great cities still remains an unsolved problem in America. 
 State legislatures, under most of the state constitutions, are 
 vested with general powers of legislation for them, and may 
 create such offices as they think best and prescribe the mode 
 of filling them. State legislatures, however, are seldom in 
 a position to judge wisely of the needs of a city, and all 
 schemes to govern through state appointees have resulted in 
 gross misgovernment and corruption. It is fully demon- 
 strated that the people will govern themselves better than any 
 agency from without, but it is not demonstrated that they 
 will do very well under prevailing methods and conditions. 
 The general framework of the city government is similar to 
 that of all the other governmental agencies. There is an ex- 
 ecutive head, usually called the mayor, and a body vested 
 with legislative powers, usually termed the council. This 
 
UNITED STATES 8S9 
 
 consists sometimes of one and sometimes of two chambers, 
 the very large cities usually having an upper and a lower 
 house, while the smaller generally have but one. The mayor 
 and council are vested with power to enact ordinances for 
 the regulation of police affairs in the city, and for the man- 
 agement of its property, the regulation of streets, public 
 grounds, water fronts, and other places to which the people 
 resort. They may impose penalties, usually limited to a 
 small fine or a brief term of confinement, for violation of 
 their ordinances. To the mayor and council the people look 
 for management of the supply of water, light, gas, electricity, 
 for pavement of the streets, construction of bridges, side- 
 walks, sewers, dykes, public buildings, markets and number- 
 less other conveniences, and the regulation of all public service 
 corporations, so far as their limited powers will enable them 
 to do so. Recently what is termed the commission form of 
 government has been adopted by some cities under which a 
 single board of commissioners elected from the city at large 
 exercises all legislative and administrative functions. In the 
 small places the list of executive officers includes the mayor, 
 marshal or chief of police, street commissioner, fire warden, 
 police judge, clerk and such other police officers as the sit- 
 uation calls for. In the large cities, besides these there is 
 a long list of officials connected with each department of 
 the city government. Large forces are constantly employed 
 in the departments of the police, streets, parks, sewers, health, 
 buildings, waterworks (where owned by the city), and 
 others according to the particular needs of the city. Into 
 each large city railroads are built, requiring terminal facili- 
 ties and privileges of various kind, and subject to taxation 
 as is other property. The various corporations, owning these 
 or other great properties, find it necessary, from time to time, 
 to apply to the city for special privileges of various kinds, 
 often of great value. The use of streets, alleys and public 
 grounds is often desired and frequently granted without 
 compensation. Street railway companies, desiring to occupy 
 streets with their lines, call on the council for franchises, 
 worth millions to them. Water, gas, telephone, telegraph, 
 
86o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 electric light and power companies and other corporations of 
 many kinds, conducting great public conveniences, go to the 
 council for permits to use the streets and other public prop- 
 erty and for exclusive franchises and privileges of many 
 kinds. The necessities of the public in a city call for heavy 
 expenditures on streets, parks, sewers, public buildings, 
 bridges, viaducts, police and sanitary supervision. These, 
 added to the other expenses of the city government, neces- 
 sarily makes city taxes high, where no revenue is collected 
 in return for special privileges. The people of cities find the 
 same difficulty experienced by county, state and national gov- 
 ernments in their dealings with great private corporations. 
 The public agencies, designed to supervise and regulate the 
 corporations, are in fact often, if not usually, supervised and 
 controlled by the corporations. The reason for this lies 
 mainly in the superior qualification of the agents of the cor- 
 porations for dealing with the special subjects under con- 
 sideration. Strong personal interests, actively at work at 
 all times, accomplish the purposes of the corporations. In 
 dealing with any question relating to the operation of a 
 special branch of business, like furnishing water, gas, or 
 electricity, or operating a railroad or street railway, the 
 company's managers are reasonably certain to be much better 
 informed as to the details of the business than the members 
 of a city council, chosen from men in the various occupations, 
 indiscriminately, with no special knowledge or experience 
 concerning any of these particular matters. City councilmen 
 are frequently charged with having acted corruptly in grant- 
 ing corporate franchises, when they have merely been mis- 
 led through ignorance. Reason would indicate and experience 
 proves that the operations of great business corporations 
 cannot be efficiently supervised or regulated, except by men 
 specially qualified by education and experience for the work. 
 The idea of extending the principle of popular government 
 to the public ownership and operation of street railways, 
 water-works, gas works, telephones, telegraphs, railways, coal 
 mines and other public utilities, which are either natural 
 monopolies or likely to be artificially made such, seems to be 
 
UNITED STATES 86i 
 
 gaining favor. Whenever upright pubHc agents, who fully 
 understand the business, are placed in charge of works of 
 this character, the results are satisfactory, but city govern- 
 ments, far more than those of any other political division, 
 seem destined to fall into either corrupt or inefficient hands. 
 The reason for this appears to be that less care is exercised 
 by city voters in the choice of public officers than by the 
 people of the rural districts. This may fairly be accounted 
 for by the difference in the circumstances of the people. 
 Probably the people of the cities are as intelligent and well 
 informed as the country people, but they are more inclined 
 to give their exclusive attention to their personal affairs and 
 neglect public interests. The successful merchant, as a rule, 
 eschews politics, because he has no time to spare and believes 
 it will hurt his business to take sides in the election. Busy 
 men having large establishments of other kinds are inclined 
 to take the same view. These classes do not constitute a 
 large percentage of the voters. The wage earners in a 
 great city are always in a vast majority. The concentration 
 of wealth, which steadily increases with the growth of cities, 
 is such that the proportion of independent property owners 
 is small. The tenant wage earner, who pays little or no tax, 
 feels little concern about public expenditures or the manage- 
 ment of the city's business. Thus, from different causes, we 
 have two great classes of voters indifferent in the exercise of 
 their duties as citizens. The result is that a small class of men, 
 who devote their time to city politics and seek personal gain 
 from the results of the elections, often control the affairs of 
 a great city for years. Where the motives of the managers 
 of opposing political organizations are the same, namely, to 
 gain possession of the offices merely for the profit that can 
 be made out of them, no very exalted standard of public ser- 
 vice can be expected, whichever party wins. Improvement 
 in the conduct of city governments and the elevation of their 
 moral tone can only come through the active efforts of the 
 best classes of citizens, involving some sacrifices of time and 
 money. Perhaps the assumption by the cities of greater 
 business interests would tend to increased attention on the 
 part of the voters to the choice of city officials. 
 
862 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Corporations 
 
 Notwithstanding the fact that a very large part of all the 
 men, women and even children of the United States are stock- 
 holders in or members of one or more corporations, there 
 is much confusion of thought as to the attributes and use- 
 fulness of corporations. This doubtless arises from the great 
 variety of functions performed by different classes of them. 
 In the American system there is the city, a municipal cor- 
 poration exercising merely public functions, through the 
 agency of officers chosen by all the voters, in many states 
 including the women, yet held to the same accountability for 
 wilful misconduct or negligence connected with the discharge 
 of its functions as a private corporation. It combines sub- 
 stantially all the attributes of a local government and a pri- 
 vate corporation. Then there are the counties, townships and 
 school districts, termed quasi-corporations, with less corpor- 
 ate responsibility and less compact and forceful organiza- 
 tions. The state and nation are bodies corporate, but not 
 usually regarded as corporations. Of the corporations termed 
 private there are many classes. Formerly in Europe the most 
 important division was into ecclesiastical and lay, the former 
 conferring special privileges on some church functionary or 
 religious body, and the latter artificial powers or privileges 
 for secular purposes. In the time of Henry VII of England 
 the ecclesiastical corporations were far more numerous and 
 important than the lay. They were all dependent on the great 
 Papal organization of Rome, corporate combinations for busi- 
 ness purposes had not yet become numerous. There are now 
 in the United States a very great number of religious cor- 
 porations with much diversity in their functions. Here as 
 elsewhere the great Church of Rome has its adherents, its 
 churches, schools and other property, and priesthood high and 
 low. The governmental forces, however, are nowhere ex- 
 erted in its interests, but for its revenue it relies entirely on 
 the voluntary contributions of its members. The only com- 
 pulsion it can exercise is such as acts through the religious 
 ideas of the people and the force of church influence and 
 
UNITED STATES 863 
 
 association. The various Protestant church corporations, 
 modeled more or less after the Roman according to the views 
 of the leaders, also stand in the same relation to the general 
 public, without state support. In the management of their 
 affairs, though all profess to be guided by the law as written 
 in the Bible and to believe implicitly in all its teachings, the 
 governing force differs, being either wholly in the clergy, as 
 in the Roman, in representative bodies, as the Presbyterian, 
 or in the congregation. Perhaps the most potent and efficient 
 church organization within its limited field of action is the 
 Mormon, which for nearly half a century maintained at Salt 
 Lake City a remarkable hierarchy, which combined the func- 
 tions of a religious organization, a political government and 
 a cooperative business corporation. Though not granted any* 
 peculiar charter privileges by any state or by the national 
 government, it exercised these powers by the consent and 
 with the full support of the community. The leaders of the 
 church made up their own charter, which became applicable 
 to such and such only as chose to join them. 
 
 The American spirit of liberty finds expression in the re- 
 ligious organizations, and the diversity of individual views 
 has led to a constant splitting up of churches. Old religious 
 dogmas are constantly being discarded, and moral teachings 
 and the spiritual essence of Christianity are demanded from 
 the pulpit, rather than threats of damnation for heresy and 
 promises of safe transit to a realm of bliss as a reward for 
 faith in church dogmas. Though efforts are constantly 
 made to unite and combine the strength of the churches to 
 accomplish common ends, it is apparent that church cor- 
 porations lack cohesive force, and that the general tendency 
 is toward disintegration. The reason for this is apparent. 
 The old doctrines, which exerted such powerful influence on 
 the public, are no longer accepted as truth. Heaven is not 
 so alluring and hell has lost its terrors. In the churches a 
 leading difficulty now experienced is to get voluntary con- 
 tributions for the support of the ministers, the building, fur- 
 nishing and maintenance of the churches, and for missionary 
 and other church purposes. There is some charitable work 
 
864 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 added, but as an incident rather than the primary object of 
 the organization. The secret of the success of the early 
 Christians lay in the brotherly feeling existing among them 
 and in their mutual help. The remarkable hold of the Church 
 of Jesus Christ of Latter-day Saints, as the Mormon church is 
 termed, on its members, was largely due to the advantages 
 gained by its cooperative business functions, through which it 
 furnished its people with a system of exchange of products 
 among themselves and with the outside world without the use 
 of money. It recognized the fact that all wealth comes as the 
 result of labor well applied and economy. The great temple 
 was built and paid for by a people having no money to con- 
 tribute. A system of checks or certificates, issued by the 
 authorities for labor done or produce or materials furnished or 
 deposited in the tithing house, filled the place of a medium of 
 exchange — being redeemable in goods at the tithing house. 
 Beyond doubt the moral teachings of the clergy from the 
 pulpits have a great educational value. The early Christians, 
 while they fed, lodged and clothed those who preached the 
 new doctrine, did not maintain a salaried clergy, nor ex- 
 pensive temples of worship. The weakness of all the churches 
 is evidenced by their inability to grapple with practical diffi- 
 culties and accomplish results. To call on church members for 
 large contributions to church funds on Sunday, to be made 
 good during the week by artifice or wrongdoing, does not 
 tend to advance moral standards. The practical problem, of 
 bringing about just relations between the people in their every 
 day affairs, is one for which many of the clergy have neither 
 taste nor capacity. 
 
 We have seen that the first settlements in the United States 
 were effected through corporations, chartered by the kings of 
 England, with grants of full governmental powers, though 
 under the sovereignty of the British crown. The purpose of 
 these charters was to enlist the capital and energy of the 
 members of the corporation in a new, difficult and dangerous 
 enterprise, designed to add strength to the British empire 
 and yield profit to the members. The charters authorized 
 the corporators to organize forces in England, to transport 
 
UNITED STATES 865 
 
 them to the designated parts of America, take forcible pos- 
 session of the country and make war on any who might 
 oppose them. The corporations performed the tasks of or- 
 ganization in England, and brought together the necessary 
 combination of money to furnish and equip ships and men to 
 undertake the new settlements. After the settlements were 
 established either the corporation moved to America and 
 there discharged its functions as the governmental organiza- 
 tion of the colony, as in Massachusetts, or went out of exist- 
 ence, leaving to the people in the colonies more or less of 
 their charter privileges, according to the terms of that affect- 
 ing the particular colony and the conduct of the British 
 ministry with reference to it. 
 
 The science of government is the science of organizing 
 the whole people of some portion of the earth for common 
 purposes, and the organization of municipal corporations is 
 merely a part of the governmental work. Private cor|>ora- 
 tions, however, for the accomplishment of special purposes, 
 are formed in great variety by the voluntary association of 
 individuals, often citizens of different nations and residing 
 at great distances from each other. In Europe, till recent 
 times, corporate franchises were granted by the kings, and 
 in England sometimes by act of parliament, to particular 
 persons or to them and such as they might associate with 
 them, as a special favor. In the United States corporate fran- 
 chises were at first granted by special acts, but the favoritism 
 necessarily engendered by this system was soon perceived. 
 The practice was generally discontinued and in most states 
 is now prohibited by constitutional inhibition. Corporations 
 for almost any purpose not immoral may now be formed 
 under general laws in any state of the Union. They are in 
 fact formed to carry on all kinds of business, ranging from, 
 those which the constitutions guarantee any citizen full liberty 
 to conduct, such as carrying on small commercial, manufac- 
 turing, mining or agricultural concerns, by systems differing 
 in no important respect from and with no greater facilities 
 than, those enjoyed by single individuals or partnerships, to 
 great railroad, telegraph and mining companies, which have 
 
866 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 many elements of governmental power and perform great 
 public functions. 
 
 Perhaps the classification of corporations now of most 
 practical importance is into those for profit, having a capi- 
 tal stock on which dividends are expected, and those for so- 
 cial, charitable, religious, educational and other purposes, 
 yielding no profit to the members. Corporations for profit 
 are divided into those discharging public functions and those 
 merely conducting an ordinary private business, and also into 
 those distributing their gains on a purely capitalistic basis 
 pro rata on the capital contributed, and those distributing 
 profits on the basis of amount of dealings with the corpora- 
 tion on which the profits have been realized. Insurance cor- 
 porations are very numerous and are divided into the purely 
 capitalistic, and the fraternal and cooperative, designed merely 
 to distribute the losses of individuals among many without 
 paying profits on capital stock. These various classifications 
 are often difficult of application, because of the great diver- 
 sity both of purposes for which the corporations are formed 
 and of methods of dealing with their stockholders and mem- 
 bers. The great public service corporations exercise most 
 governmental powers, have the largest capital and employ 
 the most people of all. The construction and operation of 
 railroads on the continent of Europe is generally regarded 
 as a purely public function, and most of the railroads there 
 are owned and operated by the governments. In England 
 and the United States they are all owned and operated by 
 private corporations for profit, organized on a purely capi- 
 talistic basis. In the early history of railroad building in 
 America the construction of lines of road was sometimes 
 undertaken by the states, but in no instance was the under- 
 taking financially successful. The great outlay required 
 called for the combination of the capital of many individ- 
 uals. This could not be readily obtained for untried ventures, 
 involving so large an outlay. To induce the thrifty to put 
 their money into these enterprises, public contributions were 
 offered with the greatest liberality. States, counties, cities, 
 towns and villages voted bonds to be either exchanged for 
 
. UNITED STATES 867 
 
 the stock or bonds of the railroad company, or donated to 
 it outright, in consideration of the construction of some des- 
 ignated Hne of road. The indirect benefits resuUing from the 
 transportation faciHties furnished by the road were generally 
 regarded as a full equivalent for the bonds voted. This sys- 
 tem of public subscriptions to the capital stock of railroad 
 corporations led to the adoption of a policy by the companies 
 of making large issues of mortgage bonds to raise the re- 
 quisite capital, and to the distribution of the capital stock 
 among the promoters of the scheme and the purchasers of 
 its bonds without the payment of any money for the stock. 
 The municipalities subscribing for the stock thus became the 
 only paying stockholders and their stock had little or no 
 market value. The inordinate profits realized by the pro- 
 moters of these enterprises, and the keen rivalry of cities and 
 towns in their efforts to bring in new railroads, early led 
 to the greatest activity in the organization of railroad cor- 
 porations and the construction of new lines of road. No 
 other country has so many miles of railroad and nowhere 
 else has there been such vigor exhibited in pushing forward 
 new enterprises. While the system followed has had the 
 advantages of rapid development and a remarkable exhibition 
 of inventive genius and engineering skill in the improve- 
 ment of rolling stock and machinery and the construction 
 of roads under all kinds of difificulties; it has been attended 
 with many and serious wrongs and inconveniences, among 
 which are corrupting influences exerted on all depart- 
 ments of the government, unjust treatment of persons and 
 localities, frauds upon stockholders, oppression of em- 
 ployees and patrons of the road, and a recklessness of human 
 life in the movement of trains quite peculiar to American 
 railways. In early days it was so vast an enterprise to build 
 a railroad from the seabord to the great lakes, that several 
 corporations were required to construct it in parts. Now 
 lines aggregating more than 10,000 miles are under a single 
 management. The growth of railways, which, during the 
 period of most rapid construction, brought into existence a 
 great number of new corporations, has now taken a decided 
 
868 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 turn in the direction of consolidation, not only of connecting 
 but also of competing lines. The necessity for separate 
 charters, in each state where a new line was to be con- 
 structed, in order to exercise the right of eminent domain 
 and condemn the ground required for the uses of the road, 
 led to the taking out of a number of charters for each long 
 line of road. Most states now authorize the consolidation of 
 connecting lines, built under charters from other states, and 
 the manifold advantages of a single management, covering 
 a large system of roads, have led to consolidation upon con- 
 solidation. To the corporation there are the great economies 
 of reduced cost of management and increased business. To 
 the public there is the advantage of transportation for long 
 distances under a contract with a single company, without 
 the vexations attending transfers from one line to another. 
 The public like to ride on a through train from starting point 
 to destination, and railroad managers like to supply such 
 trains. All interests, public and private, can be better served 
 by long lines with many branches, than by separate concerns. 
 Against these manifest advantages stand the fear and men- 
 ace of too much power to aid or crush the individual or 
 locality and to influence public officials. The logic of con- 
 solidation has been more fully exhibited with reference to 
 the telegraph than the railroads. Whereas in the early 
 history of the telegraph there were many separate companies, 
 now a single corporation has a practically complete network 
 extending all over the United States and much of Canada 
 with cable lines to Europe and the West Indies. Telegraph- 
 ing, so nearly allied to the postal system in the service it 
 performs, is now a governmental function in all the great 
 European countries, including the British Isles. It is a nat- 
 ural monopoly, requiring a single management for efficiency. 
 The same principles apply to the telephone, which, at first 
 used only in limited areas for short distances, has now de- 
 veloped into a vast network connecting distant cities, towns 
 and country homes. Waterworks necessarily have a limited 
 field of operation, but like the railroad, telegraph and tele- 
 phone, require the use of the public streets and the exercise 
 
UNITED STATES 869 
 
 of the power of eminent domain for their estabUshment, and 
 are natural monopoHes for the district served, admitting no 
 advantage from competition. Gas, electric light and street 
 railway companies discharge functions of substantially the 
 same character. All these are public service corporations, 
 exercising powers strictly governmental in character within 
 long established principles. The lands on which their works 
 are constructed can and are forcibly taken from private own- 
 ers against their will, because public needs require them. But 
 the use of the right of eminent domain in the construction 
 of their works is neither the only nor the greatest govern- 
 mental function exercised by these corporations. The rail- 
 way companies own the great highways of the country ovfer 
 which its vast commerce passes. They construct and main- 
 tain the roadway, and generally the vehicles used on it. No 
 one can ride or transport his property over it without their 
 aid, nor except on the terms they impose. In countries of a 
 low order of civilization the public highways, and often the 
 rivers, are held as the property of some ruler or petty lord, 
 and tribute is extorted at his pleasure from all who pass 
 along them. The system followed in the United States by 
 the railroad corporations was to charge passengers and ship- 
 pers such rates as in the judgment of the railroad officials 
 will produce the largest net revenue. Attempts at direct 
 legislative control, to make charges reasonable and prevent 
 discriminations for the enrichment of a few and the impover- 
 ishment of the many, have been made from time to time, but 
 without satisfactory results. Most members of most legis- 
 latures are ignorant of the facts and in no position to make 
 rules which will work well in practice. Most bills of this 
 character fail to pass, mainly because members recognize 
 their own unfitness to act on the subject, and in a less degree 
 from the corrupting influences exerted by the railroad lobby. 
 Such bills as do pass are mostly nullified by the courts,^ es- 
 pecially of the United States, which in determining the reason- 
 ableness of such legislation have assumed legislative functions. 
 Regulation of rates and operation through the Interstate 
 Commerce Commission and similar state commissions is pro- 
 ducing more satisfactory results. 
 
870 EVOLUTION OF GOVERN'MENTS AND LAWS 
 
 The law, which fixed the terms on which the citizen might 
 travel over this class of highways or transport his property 
 to or from his market, was made by or under the direction 
 of the board of directors of the railroad used. Now these 
 rates are subjected to revision to some extent by the 
 commissions. 
 
 Still another governmental function, reaching in some in- 
 stances even farther than any named, is that of determining 
 where towns may be built and where not; stimulating the 
 activities of favored localities and destroying towns already 
 built. Small business centers, little towns, are built where- 
 eyer the railroad company establishes a depot. Considerable 
 towns grow up at its division points and around its shops. 
 A change in the location of one of these generally means 
 financial ruin to many in the deserted town, and greatly in- 
 creased activity at the new point. Neither state nor nation 
 have ever attempted any check on such changes, or any re- 
 quirement of compensation to injured parties. There are 
 hundreds of towns scattered throughout the United States, 
 which are mainly dependent on some one railroad company 
 for the employment of a large part of their people. When- 
 ever, such a change is made as to force its employees to reside 
 •elsewhere, residences must be abandoned and business prop- 
 'Crty rendered valueless. 
 
 In its dealings with its vast army of employees it may be 
 said that the railroad corporation merely stands in the same 
 position as any other employer, but this is only partially true. 
 In many places the railroad company has a monopoly of the 
 labor market and is therefore in a position to fix prices. The 
 organization of the different classes of railway employees into 
 unions has given them the added strength which organiza- 
 tion and combined effort always bring. This system however 
 is attended with its disadvantages to both parties and also to 
 the public. Whenever there is an open breach between the 
 company and the men and a strike follows, the business of 
 the company is paralyzed, the men earn no wages, the com- 
 pany gets no profits, and the activities of the public depend- 
 ent on it cease with the attendant loss of all that might have 
 
UNITED STATES 871 
 
 been gained if no disturbance had occurred. Whatever 
 causes enforced idleness results in a loss to the public equal 
 to all that would have been produced and performed if ac- 
 tivities had continued normally. Something of the same 
 principles apply to all the other public service corporations, 
 but the railroads are of overshadowing importance, and the 
 correction of the evils connected with their operations are 
 still far from a satisfactory solution. No other question con- 
 nected with popular rights, now under consideration by the 
 American people, compares in urgency and importance with 
 that of the proper mode of conducting and regulating the 
 businesses now under control of public service corporations. 
 Banking corporations occupy a very important place in the 
 business of the country. National banks, authorized to issue 
 bills designed to circulate as money and the payment of which 
 is guaranteed by the United States, discharge a strictly gov- 
 ernmental function and enjoy the special privilege of issuing 
 and drawing interest on a limited amount of credit money. 
 Ordinary commercial banks organized under state laws, 
 which receive deposits, loan money and buy and sell exchange 
 and securities, discharge an important function, intermediate 
 in character between the public and private. They are now 
 generally under state supervision through a state commis- 
 sioner, who inspects their books and securities and compels 
 compliance with the law. The ordinary bank is organized by 
 the people of the town in which it is located, who subscribe 
 for its stock and name the board of directors, which employs 
 a cashier and whatever other agents the business may require. 
 It is a useful agency, by which the money in circulation is 
 made to perform more service and to effect many more ex- 
 changes and payments than if left scattered in the pockets 
 of the depositors. It also supplements the currency by the 
 use of accounts, checks and drafts, which pass from one 
 customer to another and effect payments by charge and credit 
 on the books without the actual use of any money. So long 
 as confidence in the solvency of the bank is maintained, 
 checks drawn by depositors against their accounts answer all 
 the purposes of money to those who merely desire to increase 
 the balance of their credits in the bank. 
 
872 EVOLUTION OF GOVERN'MENTS AND LAWS 
 
 No subject connected with state and national legislation is 
 of more importance than that of guarding against the recur- 
 rence of financial panics. Congress has recently provided for 
 a system of reserve banks, designed to combine the strength 
 of many, and provide extra issues of currency to meet emer- 
 gencies. Some states provide for a state guarantee of deposits 
 based on a reserve fund accumulated from contributions made 
 by the banks. It is too early to speak confidently of the perma- 
 nent value of these expedients, but they appear to be useful. 
 
 The insurance of lives, limbs and property has developed a 
 greater variety of corporations than any other branch of 
 business. The banks and the great public service corpora- 
 tions are mostly purely capitalistic organizations, in which 
 representation is based on the amount of stock held. 
 
 The insurance corporations present all forms, from the 
 strictly capitalistic to the purely mutual and cooperative. The 
 business of life insurance has developed the largest aggrega- 
 tions of capital, single concerns now reporting hundreds of 
 millions of dollars in assets. Few if any of these companies 
 profess to be purely capitalistic. Nearly all promise to divide 
 net earnings among policyholders. The great concerns pay 
 high salaries, and often still higher compensations in the way 
 of commissions, to their officers and agents. The manage- 
 ment falls into the hands of a board of directors, who usually 
 find it easy to perpetuate their authority, no matter how 
 liberal they may be in fixing salaries for themselves and their 
 friends. They alone keep in touch with the members of the 
 company and know their names and addresses, and it is usu- 
 ally easy for them to gather proxies enough to reelect them- 
 selves at each annual meeting. The receipts from premiums 
 on new policies are more than sufficient to pay losses under 
 old ones, and the business and assets continue to grow without 
 the company being subjected to any call which really tests its 
 solvency. At the other end of the line are what are termed 
 the fraternal companies, which in the simplest form merely 
 call on each member of the company, or of the class of policy 
 holders to which the deceased member belonged, for a stated 
 contribution to be paid to the beneficiary. A small sum is 
 
UNITED STATES 873 
 
 collected from each member to pay current expenses. There 
 is no capital stock and no accumulation of funds. Most fra- 
 ternal orders now accumulate funds from which losses can 
 be paid promptly, without waiting to collect from members, 
 and fix a regular rate of yearly payments sufficient to cover 
 losses and accumulate an adequate reserve fund. Life in- 
 surance finds great favor with the American public, because 
 it relieves the distress of families suffering from the loss of 
 their bread winners. The early system was to merely pay a 
 lump sum, specified in the policy, in case of death, and this is 
 still the prevailing one, but a considerable sum in cash, paid 
 to persons unaccustomed to the investment of money, usually 
 results in the loss of much of it through unwise investments. 
 Policies of insurance are now issued, which provide for the 
 payment of annuities for life or a specified period of years. 
 So large a part of the people invest in insurance, and the 
 principle of providing against the day of sorrow and calamity 
 grows in favor so steadily in enlightened states, that it would 
 now seem to be a legitimate function of the state. All the 
 states have insurance departments to inspect and regulate the 
 corporations. The principle of insurance being merely the 
 distribution of an individual loss among many, so that no one 
 bears a heavy burden, is so simple that it could easily be car- 
 ried out through a public insurance office. The business of 
 fire insurance is also divided between capitalistic corporations 
 and mutual or cooperative companies, the leading distinction 
 between the two being that the former is organized with a 
 capital stock and sells its policies at fixed rates, while the 
 latter undertakes to apportion losses among its members, 
 adding only the actual cost of conducting the business. The 
 great life insurance corporations have become among the 
 greatest moneyed institutions in the country, and the organi- 
 zation of new corporations, which have adopted some new 
 feature or made some modification of an old one, goes steadily 
 on. Many insurance companies combine an organization for 
 social purposes with the business of life insurance, and many 
 of these also add other charitable features, for the relief of 
 the sick, the burial of the dead and the care of widows and 
 
874 EVOLUTION OF GOVERN'MENTS AND LAWS 
 
 orphans. In nothing is the genius of the American people for 
 organization and innovation more clearly exhibited than in 
 its multitude of insurance and fraternal companies. The 
 tendency in these organizations seems to be in the direction 
 of complexity and diversity, rather than simplicity according 
 to some standard. 
 
 The business of manufacturing in most of its branches is 
 now mainly in the hands of corporations. These range in 
 size and importance all the way from small concerns owned 
 by a very few persons, with only a few hundreds of dollars 
 of capital, to the great steel corporation with its billion dollar 
 capitalization. They may be merely small competing com- 
 panies or vast monopolies. Mining also is now done almost 
 wholly by corporations, ranging from the little concern, oper- 
 ating a particular mine, to the Standard Oil Company which 
 controls a large part of the world's supply of mineral oil. 
 Commercial corporations in endless variety also exist, rang- 
 ing from the cooperative country store to the so-called trusts, 
 formed to monopolize one or more products. 
 
 Besides these various classes of corporations, designed to 
 benefit their members in some material way, there are the 
 charitable, social and educational ones, from which the con- 
 tributors hope for no personal gain but seek to do good to 
 others, through the maintenance of hospitals, asylums, clubs, 
 schools, libraries, reading rooms, and other conveniences. 
 The leading part now played in all the business of the country 
 by corporations, the marked tendency toward great combina- 
 tions and consolidations, and the inability of the state and 
 national authorities to curb them, have led to much strong 
 denunciation of corporations indiscriminately, and to a feeling 
 of distrust and intense hostility in many quarters. The great 
 corporate aggregations are now engaged, either in transpor- 
 tation, manufacturing, trade, insurance, banking or in the 
 management of public utilities. The agricultural population, 
 the wage earners, the professional men and those in miscel- 
 laneous callings, are not organized into strong, compact 
 corporations, designed to further their interests. As govern- 
 mental organizations seem indispensable to the security of the 
 
UNITED STATES 875 
 
 individual and the maintenance of peace at home and abroad, 
 so business orgnization is necessary to secure to the individual 
 just returns for his work. 
 
 The wage earners in certain Hues have achieved remarkable 
 success in the maintenance of labor organizations, but while 
 some of these take the form of corporations, they are not held 
 together by any strong tie. Common interests and sympathy 
 with each other constitute practically the only bond. The 
 strength of the organization always depends on the complete- 
 ness with which all the laborers in a particular line are bound 
 together, so that all will act in concert. A single laborer, in 
 dealing with a great corporation, can do no more than accept 
 the company's terms of employment. All the employees of 
 such a corporation, acting through their representatives, can 
 secure such terms as general business conditions warrant. 
 There are serious objections however to the general system of 
 a few capitalists controlling great properties dealing with an 
 army of laborers through their representatives. It quite fre- 
 quently happens that one side or the other or both become 
 unreasonable and an open breach follows, causing a cessation 
 of work and the interruption, not only of the business of the 
 corporation, but of all the public dependent on its operations. 
 Sometimes a strike is followed by attempts to use force, by 
 blows and bloodshed. It always entails heavy loss on the 
 laborers, and usually on the company and the outside public. 
 These conflicts are always destructive in character. Arbitra- 
 tion is one of the remedies proposed, but there is great diffi- 
 culty in securing an impartial and competent tribunal to de- 
 cide the issue. The question as to the rate of wages which 
 ought to be paid is not susceptible of a definite answer, capa- 
 ble of mathematical demonstration. The revenues of a cor-, 
 poration fluctuate, and the necessary outlays increase and 
 diminish. What percentage of gross revenues ought to go to 
 labor and what to capital, and what is a fair return on in- 
 vested capital, are matters on which the minds of men differ 
 widely. If the capitalist as a separate factor could be elimi- 
 nated and the stock of the corporation all be held by the 
 employees, this particular trouble would be obviated, but the 
 
876 EVOLUTION OF GOVERN'MENTS AND LAWS 
 
 questions between the several employees as. to their respective 
 rat:es of compensation, and with the general public as to rates 
 of charges to them, would still remain. Even when this idea 
 is carried to its extreme limit, so that the property of a cor- 
 ppration is owned by all the people who are in any manner 
 interested in its business operations, the questions as to rates 
 of compensation for services still remains. The cooperative 
 corporations, the Rochdale stores and similar organizations, 
 seek to solve the problem of establishing more just relations 
 between all parties concerned by limiting profits on capital, 
 establishing schedules of wages, promoting laborers and em- 
 ployees solely on a basis of merit, and returning to customers 
 all excess of profits over the expenses and percentage allowed 
 on the capital. The great fortunes, now such a marked feature 
 in the United States, are mostly made in some manner from 
 corporations. The disorganized mass of agricultural, wage 
 earning and professional people, are at all times at a disad- 
 vantage in their dealings with strong combinations. They pay 
 more than a just compensation for the services, and excessive 
 profits on the wares of the corporation, and where they sell 
 their products to it they get less than the market warrants. 
 
 The subject of business organization and combination is 
 the leading one before the American public. As we have 
 seen, the political system so far as the general structure and 
 the leading principles of government are concerned, appears 
 to be settled, but the question of efficiency in business organi- 
 zation and just relations and fair dealings between citizens 
 in their every day life is as far from a satisfactory solution 
 as ever. In considering the principles governing the purposes 
 of corporations there are two things mainly to be regarded, 
 efficiency and justice. 
 
 For efficiency in carrying forward a great enterprise, in- 
 volving the accumulation and use of large capital and the em- 
 ployment of a great number of men, it is evident that the 
 capitalistic system is the most vigorous in the existing state 
 of popular education and public opinion. Combinations of 
 accumulated capital for such a purpose can be much more 
 easily formed than combinations of the necessary laborers 
 
UNITED STATES 877 
 
 to do the work on their own account. Take the case of the 
 construction of a railroad, a few great capitaHsts, or even a 
 single one, can contribute the necessary money and through 
 agents employ the required number of laborers and purchase 
 the necessary materials to build it. There is little danger of 
 divided counsel. When once it has been determined that the 
 project shall be carried out, it moves steadily forward. 
 Where bonds and stock are sold on the market to raise the 
 money, the projectors still direct the operations, and if the 
 project commends itself to smaller investors, little difficulty is 
 experienced in accumulating funds as fast as needed to pay 
 the laborers and buy the materials. After the road is built 
 its business interests are to be considered. The board of 
 directors of a purely capitalistic corporation is free to employ 
 or discharge whomever it pleases. The selection of efficient 
 employees is at the same time the most necessary and the most 
 difficult thing required to insure successful management. In- 
 tegrity, capacity, industry, and fidelity are demanded of every 
 man who enters the service. The stockholders have first to 
 choose a competent board of directors, and these have to 
 outline the general policy of the company and employ effi- 
 cient agents and managers to carry it out. If a corporation 
 with the requisite capital and a sound purpose fails, it usu- 
 ally does so because of the dishonesty or inefficiency of its 
 managers. Strictly first class men to conduct any enterprise 
 are often hard to find, but it does not follow that they always 
 or usually demand inordinate compensation. Great numbers 
 of corporations, large and small, go to pieces year by year 
 as a result of weakness at the head. The purely capitalistic 
 corporation usually receives the watchful care of its principal 
 stockholders, and through their vigilance is protected from 
 the dishonesty and inefficiency of employees, but on the other 
 hand this class of corporations stands more in a position of 
 antagonism to its employees than the cooperative ones, and 
 therefore requires greater vigilance in their supervision. 
 
 When the railroad is built it is found that its business may 
 be greatly increased by extending the line from one or both 
 ends and by branches reaching out into country that can be 
 
878 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 made tributary. This may be effected by consolidating with 
 lines already built, or by the construction of new ones. Con- 
 solidation is far more economical than the construction of 
 competing lines. It is usually advantageous to the corpora- 
 tion on the score of economy, and to the public on that of 
 efficiency of service. The purely capitalistic corporation,, 
 which needs to consult only a limited number of stockholders,, 
 can effect these combinations far more easily and readily than 
 one organized along other lines, where more people with 
 smaller interests must be consulted. 
 
 Great combinations in manufacturing and commercial en- 
 terprises, when carried to the point of a monopoly of a 
 particular line of business, often bring great advantage, both 
 from the reduction of operating expenses and from increased 
 margins of profit on the articles produced or dealt in. Below 
 this point the economies are often sufficient to give large 
 gains. The purely capitalistic corporation requires of its em- 
 ployees merely that they understand all matters connected 
 with their particular duties and perform the tasks assigned 
 them. The compact between employer and employee calls 
 for service on one side and wages on the other, and may 
 generally be severed by either at any time. The cooperative 
 organization has some points of efficiency which are superior 
 to the capitalistic. It has the active support of more people 
 and, when merely designed to transact a particular branch of 
 business for its members at the cost of the service, it elimi- 
 nates much or all of the expense caused by competition. The 
 weakness of the cooperative concern generally lies in scant 
 capital, lack of a well digested plan of operations, understood 
 by the members, and a disposition to distribute profits, rather 
 than use them in extending the enterprise. For efficiency a 
 corporation must have the requisite capital, no matter what 
 may be the principles of its organization. 
 
 The next consideration is the justice of the system. It is 
 in this particular that the great capitalistic corporations are 
 most open to criticism. The attacks so commonly made 
 against them because of their vast properties, incomes, and 
 power, and their tendencies to grow, combine and consolidate, 
 
UNITED STATES 879 
 
 would be groundless, if all these elements of strength were 
 justly used. The fundamental objection to the ordinary cap- 
 italistic corporation is, that its sole purpose is financial gain, 
 and that in business it has a code of ethics corresponding to 
 that of the king, who uses his army to extend his dominions. 
 Among the many unjust and immoral operations connected 
 with these organizations may be noted the manipulation of 
 and gambling in their stocks. The vast fortunes thus ac- 
 quired are not products of earnings, carefully saved and ap- 
 plied to the development of new enterprises. The moral 
 tone of the management of great corporations is low in the 
 particular that its officials and agents are often required to 
 seize every advantage and yield nothing except where the 
 company is legally bound. Officials are not always authorized 
 to deal justly and fairly with the public, but are sometimes 
 bound by rigid rules to yield no advantage gained. Doubtful 
 claims against the company are rejected and meritorious ones 
 of certain classes habitually scaled down under threat of 
 litigation. In the conduct of their business, such of the great 
 corporations as enjoy monopolies, like the railroad corpora- 
 tions and other public service companies, and the great manu- 
 facturing and commercial corporations which have achieved 
 a monopoly of some line of business, may and often do, fix 
 prices and charges at such rate as, in their judgment, will 
 yield the largest net return, without regard to the rights of 
 the public. 
 
 These immoralities seem to be inherent in monopolies. Po- 
 litical power, monopolized by a king, has always surrounded 
 him with favorites without merit, whom he caused to be- 
 come enriched at the cost of his subjects. The efficient 
 remedy for the evils of monopoly would seem to be to elimi- 
 nate the monopolist, let the public, or the portion of it inter- 
 ested, condemn and pay for the physical property, and employ 
 and pay public servants for the services required in conduct- 
 ing the business. The despotic government has a king, to 
 despoil his subjects in the interest of himself and favorites, 
 and to lead his followers into foreign lands and kill, destroy 
 and rob the people there. The advanced idea of government 
 
88o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 is that it is a public agency to do for the people those ser- 
 vices, required by the general public, which they cannot do 
 for themselves separately. The corporations, now as in the 
 first settlement of the country, are experimenters, preliminary 
 organizers and promoters, who explore and formulate, and 
 by their successes educate the people into new ways. 
 
 Perhaps the most grave charge of immorality in the great 
 capitalistic corporations remains yet to be made. It is their 
 corrupting influence on all departments of the government. 
 Congress and the legislatures are never free from their emis- 
 saries. Corrupt members are hired to do their work, and 
 weak ones are tempted to vote in their interests. Executive 
 officers, charged with any discretionary duties affecting their 
 interests, are tempted in the same manner. The corrupt lob- 
 byist of the great corporation is always a man of intelligence 
 and culture, and usually one who in private business would 
 have been a fairly honest man. The immoral purpose and 
 spirit of his employer corrupts him and makes him a bribe 
 giver. Most subtle and dangerous of all the corrupting in- 
 fluences, are those with which the courts are surrounded. The 
 representatives of the most powerful corporations always 
 take an active part in the selection of judges, whether elected 
 or appointed, but their influence is far more potent in gaining 
 appointments of favorites than election of them. When 
 elected the judges are extended all manner of courtesies by 
 the officials, free passes, franks, special cars and numerous 
 other accommodations appreciated by the recipients, but not 
 in the form of gross and palpable bribes. The careful culti- 
 vation of the acquaintance of the judges and the observance 
 of their weaknesses and leanings perhaps is not open to cen- 
 sure, but is found profitable by them. The judge, like other 
 men, generally likes good living and a good income. They 
 are always ready to propose a banquet with him as an honored 
 guest, or an excursion at the company's expense. But they 
 like to do more. Whenever there is a chance to raise his 
 salary out of the public funds, they are on hand to urge it. 
 Corporations enjoying unmerited privileges and inordinate 
 revenues feel safer in court before an overpaid judge. It 
 
UNITED STATES 88i 
 
 puts him to that extent in their class and in sympathy with 
 them. So we find the salaries of the judges constantly raised 
 as they exhibit more and more strongly their leanings to 
 arbitrarily uphold the unjust privileges of the monopolies. 
 The same system has prevailed in England from an early 
 day. The judges there, who are relied on to enforce the 
 privileges of the aristocracy, are paid inordinate salaries, out 
 of all proportion to the value of their services. Under these 
 circumstances they unhesitatingly enforce unmerited privi- 
 leges in the name of law. 
 
 The injustice wrought by corporations lies in the taking or 
 withholding from one or many of that which is justly their 
 due and conferring it on one or more others to whom it is 
 not due. There are two principal classes of recipients of the 
 revenues of a corporation, the employees, high and low, and 
 the stockholders. Probably the most glaring abuses in the 
 payment of salaries are connected with the great life insurance 
 companies, which have no watchful stockholders to change 
 directors and compel a reduction of salaries. The abuses con- 
 nected with some of these corporations are very gross, the 
 only practical limit seeming to be the greed of the managers 
 themselves. Some of the great railway corporations pay a 
 few quite high salaries, but the general rule with reference to 
 the salaries of the officers of corporations is that they are 
 not grossly excessive. The other employees usually earn all 
 or more than they get. The bulk of the excessive gains goes 
 to the stockholders. While efforts are constantly made to 
 correct the evils and injustices mentioned by legislation, an- 
 other method is being evolved which may in time accomplish 
 the result. This is merely the organization of corporations 
 to do the business now transacted by the objectionable ones, 
 but on just principles. The rules governing the operations 
 of a corporation are made by its directors and stockholders 
 and become its laws. If these are just to all concerned the 
 desired end is accomplished. The fraternal orders have come 
 very near solving the problem so far as insurance is con- 
 cerned. They lack however the economy and strength that 
 would come from a single organization without competition 
 
882 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and under no necessity to solicit business. The chief expense 
 of all insurance companies is connected with getting the busi- 
 ness. The ideal organization would be one resorted to by all 
 insurers, which paid all honest losses promptly and collected 
 from policyholders only enough to enable it to do so and to 
 pay reasonable wages to all its necessary officers and clerks. 
 The Rochdale store system is designed to eliminate mer- 
 chant's profits by distributing among the stockholders the 
 net profits, above a fixed moderate percentage on the capital 
 stock and the expenses of transacting the business, on the 
 basis of the amount of goods purchased rather than the 
 amount of stock held. Sometimes a part of these profits is 
 given to the employees. The usefulness of these organiza- 
 tions depends on integrity and ability in management and the 
 combination of a sufficient number of patrons of the stores 
 to make economical management practicable and leave a mar- 
 gin of savings. Very small concerns can rarely succeed. The 
 same principle is now being applied in selling agencies. The 
 producers of many articles of commerce find it to their in- 
 terest to combine and sell their products in the general market 
 through a common agency, instead of selling to dealers, 
 thereby saving the profits and distributing them among the 
 stockholders who sell their products to the corporation, on 
 the same principle as the Rochdale stores distribute them 
 among buyers. Though some of these cooperative concerns 
 have assumed large proportions, as a rule they are engaged in 
 lines of business requiring only a small capital. Little or no 
 success has as yet attended the construction of railroads or 
 other public service plants, requiring large capital, on a co- 
 operative basis. In cities the public municipal corporations 
 successfully take on the added functions of supplying the 
 municipality with water, light, heat, power, street transpor- 
 tation and the like, in which all the citizens are interested 
 and require similar service.. The principle on which these 
 public utilities are conducted by the municipalities is that of 
 cooperation. The service is rendered at cost, interest being 
 usually paid on a bonded debt covering the cost of the 
 property. 
 
UNITED STATES . 883 
 
 The problem as affecting railroads, telegraphs and tele- 
 phones has been solved in Europe, New Zealand and else- 
 where by governmental ownership, thus extending the 
 cooperative principle to the conduct of these lines of business 
 by the highest corporation, the state. The International 
 Postal Union has gone yet one great stride farther and is 
 the pioneer world wide cooperative combination, which trans- 
 mits the mails from any part of the civilized world to any 
 other part of it, with the maximum of efficiency and the 
 minimum of cost. No other business agency in the United 
 States compares in efficiency with the Post Office. This is 
 a purely cooperative enterprise, conducted in the interest of 
 the whole people by the national government and is the most 
 useful and important function it performs. The great tele- 
 graph company operated by a purely capitalistic corporation 
 with capitalistic methods over substantially the same territory 
 within the United States and also reaching into other coun- 
 tries, gives very poor service at very high rates and stands in 
 strong contrast with the Post Office both as to efficiency and 
 economy. 
 
 The true position of the corporation is that of a pioneer in 
 the work of organizing the world on a firm basis of peace. 
 Unlike the military organizations of feudal times, which per- 
 formed no beneficial function for the common good, the cor- 
 porations, almost without exception, conduct some useful 
 business. They combine capital and labor in trade, transpor- 
 tation, manufacturing, mining, fishing or other peaceful pro- 
 ductive enterprise. Great latitude is allowed in all the Ameri- 
 can states in the purposes for which corporations may be 
 formed. The corporators are allowed to fix the amount of 
 their capital stock, the size of the shares, the duration of the 
 corporation, to give it a name and specify the objects it in- 
 tends to accomplish, which many states allow by statute to be 
 any lawful one. This permits anyone to take the initiative 
 and form an organization to do anything useful, with what- 
 ever strength of combination he is able to draw together. 
 Success in the enterprise requires not merely the requisite 
 capital and working force, but the education of all who are 
 
884 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 connected with it in its principles and methods, so that each 
 may know his duty to the corporation and its members and to 
 the pubHc. Failure comes from many causes, inadequate 
 capital, incompetent management and dishonesty, but most 
 frequently of all from want of a perfect understanding as to 
 the end to be accomplished, and how it is to be done. Ill- 
 digested schemes, not quite clear in the minds of the pro- 
 moters, or well digested ones not fully comprehended by those 
 relied on to carry them through, are generally doomed to 
 failure from the start. 
 
 No other topic fills so wide a field in the law or is of such 
 growing importance as that of corporations. In no other 
 way is the genius for directing the combined efforts of num- 
 bers of people so fully manifested as in their organization and 
 operations. They afford object lessons of deep moral de- 
 pravity and of the most exalted altruism, of heartless greed 
 and cruelty and of that charity and helpfulness which is the 
 outward expression of love for the unfortunate. They should 
 be approved or condemned according to their deserts, and 
 fostered or destroyed according to their helpful or harmful 
 effects. Viewed a$ a whole they fairly gauge the moral 
 standards and efficiency of the business world, and point the 
 way to higher and still higher social development. 
 
 National and State Laivs 
 
 The system of laws, which prevails throughout the United 
 States, has for its foundation the common law of England 
 and the ancient statutes of that country. It is a very com- 
 mon error to assume that the original purpose of all laws was 
 to compel all to be just. Many laws in all countries are de- 
 signed to promote injustice. This is true of the land laws of 
 England. The leading purpose of the law-makers, since the 
 free Saxon common tenure of land was changed into the 
 feudal system, has been to give unmerited advantages to the 
 king and his courtiers, in early times, and to the favored few 
 in modern, through a legal theory of land ownership. AH 
 the monstrous injustice of the feudal tenures was based on 
 strict law, which gave to the lord the soil and through his 
 
UNITED STATES 885 
 
 title to it arbitrary power over all the dwellers on it. There 
 are some survivals of ancient Saxon ideas in the commons 
 and highways of the country, but the leading idea of exclus- 
 ive ownership of the soil, without reference to use or occu- 
 pancy, is the feudal idea modernized. Under the feudal 
 system the lord exacted services from his tenants, but was 
 himself bound to protect the tenants in their possessions. Un- 
 der the modern American system of absolute paper titles, one 
 may acquire the title to an unlimited area of land, without be- 
 ing under any obligation to allow any of the tenants on it to 
 remain, and with no limitation whatever on the terms he may 
 impose on those he may take as his tenants. He cannot be 
 forced to sell or rent any part of it, except for public use for 
 those purposes recognized as warranting the exercise of the 
 right of eminent domain. In the early history of the country 
 there was an extensive development along lines somewhat 
 similar to the ancient tenure in common. The government of 
 the United States acquired vast districts of country, subject 
 only to the claims of the native Indian tribes, which were held 
 as public property. Some of the states, notably Texas, have 
 had great areas of public lands. In the early days of sparce 
 population sales in large tracts were allowed, but the policy 
 of the federal government has been to restrict the amount 
 any individual may acquire to a moderate sized farm, to be 
 occupied and tilled by the owner. The homestead law re- 
 stricts the quantity to 160 acres and requires five years' resi- 
 dence and cultivation before a patent issues. This system has 
 worked beneficially so long as there remained an abundance 
 of fertile country unoccupied. But the limit has already been 
 reached and desirable homes on the public domain are now 
 hard to find. Mountains and deserts abound, but the great 
 fertile prairies have all become private property. The nation 
 is no longer able to give to each of its citizens land for a 
 home, and the process of differentiating classes of landlords 
 and tenants is proceeding rapidly. The eleventh census shows 
 that in the new western states and territories the percentage 
 of home owners is largest, and that it is smallest in the south- 
 ern states having the largest percentage of colored people. 
 
886 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 This census shows that of the whole 12,690,152 families in 
 the United States, only 47.8 per cent owned the homes they 
 occupied, and 52.2 per cent were tenants. In 1910 the per- 
 centage of home owners had fallen to 46.5. The extreme 
 range was exhibited in Oklahoma with only 13. 11 per cent 
 of tenants and South Carolina with 71.23 per cent. As might 
 naturally be expected, the showing in the great cities is still 
 more discouraging. In the twenty-eight leading cities hav- 
 ing a population of 100,000 or more, there were 1,948,834 
 families of which 444,879 owned the homes they occupied 
 and 1,503,955 or 77.17 per cent lived in rented houses. In 
 the great city of New York, out of a total of 312,754 fam- 
 ilies, only 19,798 or 6.33 per cent owned the homes they 
 lived in. These figures are a little more unfavorable through- 
 out than the facts, because many people own homes, but rent 
 them and live elsewhere in rented houses. Widows, bachelors 
 and maiden ladies often rent their property and live with a 
 tenant family. New York but illustrates the tendency every- 
 where manifest for the land to pass into few hands, where- 
 ever the law assures ownership to the holder of a paper 
 title and his heirs without regard to occupancy. The most 
 significant facts connected with this subject are, that there is 
 a steady drift of population into the cities, that in the cities 
 the land falls under the dominion of a diminishing percentage 
 of owners, and that the laws favor and effectuate this tendency. 
 Some wealthy families in each of the older great cities have 
 for several generations steadily pursued the policy of buying 
 land and never selling. Where the income exceeds the ex- 
 penses, as the law stands, there is nothing to prevent a great 
 land owner from steadily extending his holdings and thereby 
 diminishing the area accessible to others seeiking to own 
 homes. The important point now under consideration is that 
 this results from artificial human law, and not from the law 
 of nature. In all primitive societies use and occupancy are 
 the only titles recognized. Where the land is ample and the 
 people are few, each man is allowed to occupy what he pleases 
 and when he abandons it anyone else may take it. As popula- 
 tion increases the tribe parcels out the land, giving to each his 
 
UNITED STATES 887 
 
 share, but the ownership is in the whole and the ancient 
 Saxons divided it among the working units. We are not now 
 considering the expediency of paper titles, but seek to em- 
 phasize the point that the system is wholly artificial, and that 
 the division of the people into landlords and tenants is en- 
 tirely due to the law. Whatever of injustice there is in it is 
 chargeable to the law. The law gives the landlord absolute 
 dominion over his lands and tenements, except as he volun- 
 tarily parts with it, and subject to the taxes and burdens 
 imposed by public authority. 
 
 To those who have given no study to the laws it might 
 occasion great surprise to find how little of the law adminis- 
 tered by the courts is based on Congressional or Legislative 
 enactment. It is also remarkable that of the great mass 
 of public acts of the law-making bodies, published as the work 
 done at each session, so little is of permanent force and so 
 much is either temporary in character or mere revision or 
 alteration of what preceded it. The compilation of the Gen- 
 eral Statutes of the United States published in 1875 contains 
 seventy-four titles, of which one regulates the election of 
 senators and representatives, the organization of the houses, 
 compensation of members, officers and employees, the library, 
 congressional investigations and contested elections, another 
 regulates presidential elections and president's salary. Then 
 follow nine titles devoted to the organization and conduct 
 of the executive departments, State, War, Treasury, Justice, 
 Post Office, Navy, Interior and Agriculture. Title 13 es- 
 tablishes the District and Circuit Courts and fixes the juris- 
 diction, organization and procedure of all the federal courts. 
 After these are titles dealing with the Army, the Navy, the 
 Militia, Arsenals and Arms, Diplomatic and Consular Offi- 
 cers. Title 23 treats of the organization of the Territories 
 and the four following of Civil Rights, Citizenship, the 
 Elective Franchise and Freedmen. Title 28 declares the policy 
 of the government toward the Indians and makes provisions 
 to carry it into execution. After this come titles on Immi- 
 gration, Naturalization, The Census, Public Lands, Duties on 
 Imports, Collection of Duties, Internal Revenue, Coinage, 
 
888 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Weights and Measures, Currency, Legal Tender, Public 
 Moneys, Appropriations, Public Debt, Postal Service, For- 
 eign Relations, Commerce and Navigation, Fisheries, Steam 
 Vessels, Merchant Seamen, Prizes, Lights and Buoys, Coast 
 Survey, Pensions, Public Health, National Hospitals, Asy- 
 lums and Cemeteries, Patents, Trade Marks and Copyrights, 
 Bankruptcy, National Banks, Rivers and Harbors, Railways, 
 Telegraphs, Crimes against the United States, and some 
 minor matters. All this is printed in a single volume of 1092 
 pages, exclusive of index. By far the greater space is de- 
 voted to the organization of the departments and working 
 forces of the government, the army and navy, the public 
 revenue and matters growing out of the civil war. There 
 is very little that affects the daily life of the citizen, except the 
 Post Office. 
 
 Though the people of the United States are educated away 
 from the forms of unjust government, which military power 
 has so often established, they are not yet fully awake to the 
 barbarity, the criminality and utter un justifiability of aggres- 
 sive warfare, or of war to gratify the pride, often wrongly 
 called the dignity, of a nation. In the early days of the Re- 
 public private warfare was popular. In the North and East 
 an insult must be resented by a blow with the fist, in the 
 South and West by a challenge to fight a duel. The so-called 
 code of honor required a challenge to be given under certain 
 conditions, to refuse which meant social disgrace. Friends 
 must be called in to witness the fight and the purpose was to 
 kill. This survival of barbarism has now fallen into disfavor 
 and many of the states, in which such combats were most 
 frequent, have adopted constitutional prohibition of it. 
 
 In sifting the provisions of all the statutes of the United 
 States, for the purpose of finding such as make provisions 
 beneficial to the people, we find provisions with reference to 
 the public lands, coinage, weights and measures, the cur- 
 rency, commerce and navigation, lights and buoys, hospitals, 
 asylums, and river and harbors are necessary and useful. 
 Most of the rest relate to the construction of the great gov- 
 ernmental machine and the manner of compelling the people 
 
UNITED STATES 889 
 
 to support it. Since the acquisition of the PhiUppine Islands 
 the miHtary feature has grown rapidly and the policy of con- 
 structing war ships, very expensive and utterly without use 
 in times of peace, has been adopted, and many millions are 
 annually expended on them. From $48,950,268 for war and 
 $34,561,546 for the navy in 1897, the appropriations increased 
 and in 191 1 were $160,135,976 for war and $119,937,644, 
 for the navy. A great navy of this kind will never be of 
 any use except in war, and its possession will be an ever 
 present temptation to statesmen to plunge the country into 
 foreign wars on slight provocation. The only sure bond of 
 peace between nations, as well as between individuals, is 
 confidence in each other's intentions and mutual good will. 
 Great armies and navies always prevent this confidence. It 
 is fairly certain that the United States, if always disposed 
 to deal justly with others, could safely rely on peaceful in- 
 fluences to secure the rights of its citizens the world over, 
 to substantially the same extent that they are now secured. 
 Wrongs will doubtless continue to be done in the future as 
 in the past, but the greatest of all wrongs with which the 
 world has been cursed throughout all time are the cruel wars 
 m which the innocent expiate the crimes of their guilty rulers 
 and leaders. 
 
 The ground covered by the statutes of the States is quite 
 different from that of the National legislation. It reaches 
 the daily life of the people at far more points. The statutes 
 of each state regulate the machinery of the state government 
 and also that of the counties, towns, cities and school dis- 
 tricts. They determine and establish the qualifications of 
 voters, the manner of exercising the elective franchise, the 
 educational system from the district school to the university, 
 the organization of the various courts, their jurisdiction and 
 procedure, the charitable and penal institutions, the establish- 
 ment, improvement and repairing of highways and bridges, 
 the descent and distribution of property, the administration 
 of estates, the organization of corporations, their powers, 
 duties and liabilities, the criminal code defining all public 
 offenses and fixing their punishments, the rules governing 
 
Sgo EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the guardianship of minors and care of their estates, mar- 
 riage, divorce, the conveyance and mortgaging of land and 
 recording the deeds and other instruments affecting the title 
 to it, taxation, partnerships, assignments for the benefit of 
 creditors, interest, contracts, fences, landlords and tenants, 
 liens on real and personal property, lunatics, imbeciles and 
 drunkards, domestic animals, trusts and powers. Matters 
 of local concern peculiar to the state are also covered. Of all 
 the functions of the state government that of educating the 
 young is far the most important. Of all the good things 
 passed down from generation to generation, the accumulated 
 knowledge is the most valuable. Part of this is passed down 
 outside the schools, in the homes, on the farms, in the work- 
 shops, factories, mines, counting-houses and all the places 
 where useful things are done. Instruction in useful employ- 
 ments is mostly given outside the schools, though there is a 
 marked increase of late in the attention given in the schools 
 to domestic science, agriculture and mechanical arts. The 
 practical instruction in domestic arts and in some particular 
 business, which the child receives at home and in connection 
 with such business is of the greatest practical value, but the 
 schools open a wider field to those disposed to inquire and 
 introduce the student to some knowledge of the outside work! 
 which he cannot see, to the past and the distant. Narrow 
 prejudices tending to enmity between individuals and nations 
 are mainly due to lack of knowledge of each other. The 
 bonds that bind the people of the United States in concord 
 are the bonds of interest and sympathy, which are steadily 
 strengthened by the diffusion of general information. The 
 public schools where the young are taught to read and write, 
 lay the foundation for the great educational work of the 
 newspapers, periodicals and correspondence distributed 
 through the post office, and for the use of books and libraries, 
 which constitute the more permanent treasure houses of 
 knowledge. While the general government has assigned to 
 the new states a portion of the public domain to be used for 
 the support of the public schools, the great burden of public 
 instruction is borne by the people under state regulations. 
 
UNITED STATES 891 
 
 The actual direction of school affairs is mainly -given by the 
 people themselves, who voluntarily contribute generously for 
 the free instruction of all pupils. In many states all the 
 public schools from primary to university give free in- 
 struction to all children of the state. While there is ample 
 room for improvement in the school system, both as to its 
 general theories and methods of instruction, modern civiliza- 
 tion finds its highest and best practical expression through 
 the educational institutions. All progress necessarily comes 
 from the preservation and dissemination of the truths gath- 
 ered from past experience, supplemented by the few newly 
 discovered ones. 
 
 There are some statutes to be found in nearly or quite all 
 the states, copied or modelled after old English statutes, 
 which are believed to be dictated by public policy, though not 
 founded on any principle of natural justice. What is known 
 as the statute of Frauds and Perjuries requires certain classes 
 of contracts to be in writing and denies relief in the courts 
 on parol contracts of these classes, notably contracts for the 
 sale of lands, trusts relating to lands, contracts to pay the 
 debt of another, those based on the consideration of mar- 
 riage, and such as are not to be performed within a given 
 period of time. The statute of limitations denies relief in 
 the courts unless suit be brought within the time limited by 
 the statute for the particular class of actions to which the 
 cause belongs. The theory on which these statutes were 
 passed is, that dishonest persons would claim rights under 
 parol contracts of the classes named and support their claims 
 by perjury, and therefore written evidence should be required, 
 and that stale demands are liable to be presented and falsely 
 urged after the evidence to defeat them has been lost. Both 
 these statutes confessedly work injustice by denying relief 
 on just claims under the arbitrary rules they impose. They 
 assume the prevalence of dishonesty among the people to 
 such an extent that more wrong would result by reason 
 thereof, if suits were allowed to be maintained, than by denial 
 of all remedy in the courts. This view may be altogether 
 erroneous, but the consensus of legislative judgment is such 
 
892 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 as to continue these arbitrary rules with considerable varia- 
 tion, however, in the different states, especially in the times 
 allowed for bringing suits. 
 
 While the state statutes generally require some public cele- 
 bration of marriages and many states require marriage li- 
 censes to be taken out, compliance with these requirements is 
 not generally held to be absolutely essential to a valid mar- 
 riage. The only communities where plurality of wives has 
 been allowed are the Mormon settlements. Public sentiment 
 throughout the whole country has, however, been so strong 
 against polygamy, that severe statutes have been passed to 
 extirpate it, and it is not now countenanced by the laws of 
 any state or territory. Everywhere the free consent of the 
 parties to the marriage is regarded as the only real concern 
 of the state. After marriage, in most states, the wife has 
 a status amounting nearly or quite to legal equality with her 
 husband. The old English rule, which merged the legal ex- 
 istence of the wife in that of the husband, has been done 
 away with and the wife may in most states own property in 
 her own name, contract debts, buy, sell and carry on business 
 with nearly or quite the same freedom as a married man. 
 
 The greatest diversity of state laws is on the subject of 
 divorce. At one extreme South Carolina by the constitution 
 of 1895 establishes the rule "Divorces from the bonds of 
 matrimony shall not be allowed in this state." Other states 
 like New York allow absolute divorces for adultery only, but 
 the courts are authorized to annul certain unlawful or void 
 marriages. At the other extreme are Kansas and some of 
 the other western states, which authorize the courts to grant 
 absolute divorces, for abandonment for one year, adultery, 
 impotency, pregnancy of wife at marriage by one other than 
 her husband, extreme cruelty, fraudulent contract, habitual 
 drunkenness, gross neglect of duty, conviction of a felony or 
 having another husband or wife living at the time of mar- 
 riage. Between these extremes there is much diversity in 
 the statutes of the different states. 
 
 The statutes relating to the organization and management 
 of corporations also exhibit great diversity. In some states 
 
UNITED STATES 893 
 
 a corporation may be formed to carry on any lawful business 
 or promote any legitimate object, as in Delaware, and the 
 only formalities required are filing a charter with the Secre- 
 tary of State setting forth certain matters specified in the 
 law and payment of certain fees. Other states prescribe the 
 purposes for which corporations may be formed with much 
 particularity and require application to be made to some 
 court, board or offtcer authorized to pass on the right to 
 incorporate for the purpose desired. 
 
 Statutes in each of the states regulate the descent and dis- 
 tribution of the property of deceased persons. All are framed 
 on the theory that the owner may dispose of it by will, and 
 that in the absence of a will the whole shall be distributed to 
 those related to the deceased owner by blood or marriage. 
 The leading difference in the division made is in the share 
 allowed to the surviving widow or husband, thus in some of 
 the older states like Massachusetts, New York and New Jer- 
 sey the wife is given the old common law estate of dower, 
 i.e., a life estate in one-third the deceased husband's lands, 
 and the husband takes a life estate in all the deceased wife's 
 lands as tenant by courtesy, if there has been issue of the 
 marriage born alive. In Colorado, if there are children, the 
 surviving husband or wife takes half the estate, if no children 
 the whole. In other states there are provisions intermediate 
 between these, some of them varying the rule according to 
 the number of children and others, where there are no chil- 
 dren, giving the wife the whole only of small estates and dis- 
 tributing a portion of large estates among the relatives of 
 the husband. In Mississippi the widow takes a child's part. 
 
 In the distribution of the estate among children and their 
 descendants, after the share of the husband or wife has been 
 set apart, there is entire uniformity throughout all the states. . 
 The children take equally and the heirs of deceased children 
 take by representation. There is no preference given in any 
 state on account of age or sex. There is more diversity in 
 the distribution among collaterals, which it would serve no 
 present purpose to follow. In no state is there any sur- 
 vival either of primogeniture or the ancient inheritance by 
 
894 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the whole community. Recently some of the states have im- 
 posed a tax on large estates, but the idea of state inheritance 
 has not received any legislative consideration so far as the 
 writer is aware. In many states the homestead is secured 
 against sale for debts and division among the heirs until the 
 youngest child becomes of age. The mode of conveying lands 
 is regulated by statute and is substantially uniform through- 
 out .all the states. A deed signed by the grantor is required. 
 In order that the deed may be recorded, it must be acknowl- 
 edged before some one of the officers named in the statute 
 and his certificate of the fact attached to the deed. In order 
 to impart notice of the transfer of the title, the deed must 
 be recorded in a public office, usually termed that of the Reg- 
 ister or Recorder of Deeds. There is a difference in some 
 states between a conveyance of the homestead and of other 
 real estate, the joint consent of husband and wife being re- 
 quired. Their separate deeds have been held in some cases 
 absolutely void. There is also much diversity in the different 
 states as to the effect of a conveyance by the husband alone 
 on the wife's inheritable interest in his lands. In some 
 states the husband may convey a full title to all but the 
 homestead by his separate deed, while in others the wife's 
 dower or other inheritable interest in his estate remains, un- 
 less she joins in the conveyance. In Louisiana, Texas, New 
 Mexico, Arizona, California, Nevada, Idaho and Washington 
 a distinction, borrowed from the Spanish law, is made be- 
 tween property owned prior to the marriage and that ac- 
 cumulated afterward, the latter being termed community 
 property and regarded as jointly owned by both. This joint 
 ownership does not in Louisiana prevent the husband alone 
 from conveying it. At the death of one the survivor takes 
 only the half, subject to the payment of debts, and the bal- 
 ance goes to the heirs. There is much diversity in the laws 
 of the different states with reference to what property may 
 be seized for the payment of debts. All exempt some personal 
 property, but there is much difference in the amount. The 
 general idea is to leave to the debtor and his family those 
 things which are indispensible to their comfortable existence. 
 
UNITED STATES 895 
 
 In many states this exemption includes books, pictures and 
 musical instruments without limit as to value, and even the 
 identical articles for which the debt was contracted. With 
 reference to the exemption of land there is even greater di- 
 versity, none being allowed in Rhode Island or Delaware. 
 In Pennsylvania $300 in value of real or personal property, 
 selected by the debtor, and all wearing apparel, bibles and 
 school books are exempt. In most of the eastern states, by 
 compliance with certain statutory provisions, a homestead of 
 limited value may be secured; in Maine the limit is $500, in 
 New York and New Jersey, $1,000, in Virginia $2,000, while 
 in Kansas an acre of ground in a city or one hundred and 
 sixty acres of farming land, occupied as a residence by the 
 family of the debtor, with all the improvements thereon with- 
 out regard to value, is absolutely exempt, and in Texas a 
 town homestead worth $5,000 or a farm of two hundred 
 acres is allowed. The wages of the debtor, where necessary 
 for the support of his family, are also usually exempt for a 
 limited period. This stands in marked contrast with the 
 brutal system which prevailed at the time of the revolution, 
 under which the family could be stripped to utter destitution 
 and the debtor thrown into prison, to be confined at the 
 pleasure of the creditor till some friend paid the debt. The 
 extremely liberal exemptions allowed in states like Kansas 
 are often taken advantage of by dishonest men. So long as 
 the state continues to exercise the function of a collecting 
 agent and enforces the payment of debts, it is manifestly 
 inequitable to seize the little stock of a poor groceryman for 
 his debts, and at the same time allow the occupant of a 
 palatial mansion or a farm of great value to hold a fortune, 
 exempt fiom the payment of a debt to this same groceryman 
 for necessaries bought from his store. There should be some 
 reasonable approach toward equality in such laws, as is the 
 case in many states. 
 
 In the construction of the judicial systems of the various 
 states and in the procedure in the courts, while there are 
 many common features there is also much diversity of detail, 
 due in part to divergent views of expediency. At the head 
 
896 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 in all the states there is a court of appeals with authority to 
 reverse the judgments of inferior courts for error of law. 
 These courts are usually styled the Supreme Court. There is 
 held in each county one or more courts of general original 
 jurisdiction, called either the district or circuit court in most 
 states. Between these there are sometimes intermediate 
 courts with jurisdiction to review certain classes of decisions. 
 Sometimes an appeal is allowed successively from the inter- 
 mediate to the supreme court. At the base of the judicial 
 system are the justices of the peace, usually township, but 
 sometimes county officers. Probate jurisdiction and super- 
 vision of the estates of deceased persons, minors, and others 
 under legal disability are generally vested in a Probate Court 
 called Orphan's Court in some states and Surrogate's in others, 
 but in some of the states the circuit courts exercise this 
 jurisdiction. The codes of practice are statutory modifica- 
 tions of the old English system and while, in what are termed 
 the code states, distinctions between actions at law and in 
 equity and all forms of action are in terms abolished, many 
 of the old distinctions are still retained. The idea of the 
 framers of the codes was to simplify the system and avoid 
 the failures of justice, which occurred so frequently because 
 of the strict rules of procedure and pleading. It must be 
 confessed, however, that there is very much yet to be desired 
 in the way of reforms in the methods of courts. In the great 
 care which has been taken to secure strict observance of posi- 
 tive laws, a system has been built up which affords the aver- 
 age citizen little chance to get speedy justice. Though in 
 most states the principles formerly applied by courts both of 
 law and of equity are now applied by the same tribunal in 
 one case, they are applied in a different way. Suits, which 
 under the English system were required to be brought in the 
 law courts, entitle the party to a trial by a jury. In actual 
 practice the verdict of a jury, except where it acquits a de- 
 fendant of a criminal charge, does not finally decide any- 
 thing. On a motion for a new trial the court may set it aside. 
 From this decision an appeal may be taken to a reviewing 
 court and sometimes again to a higher court, where the de- 
 
UNITED STATES , 897 
 
 cision of the trial court may be reversed. If a question of 
 Federal law is involved, an appeal lies still to the Supreme 
 Court of the United States from the decision of the highest 
 court of the state having cognizance of the cause. If the 
 decisions of the courts of last resort were final it would not be 
 so bad, but the case may be merely reversed for error in the 
 instructions given to the jury by the trial court or for other 
 erroneous ruling of the court, such as the improper admis- 
 sion or rejection of evidence, and sent back for a new trial. 
 There is never any assurance that the trial court will not 
 commit an error on some other point at the next trial, and 
 the case again go the rounds of appeal, reversal and new trial. 
 This is of frequent occurrence and suitors are often worn 
 out in an effort to reach a final determination of the cause, 
 which can only be when the highest reviewing court agrees 
 with the trial judge on all vital questions of law passed on 
 by him. Such a system lacks little of utter absurdity. The 
 difficulty is hinged on the sacred right of trial by jury, which 
 is thus rendered in fact valueless. The reviewing court will 
 not itself decide what the facts are, but will often say that the 
 findings of the jury are not in accordance with the evidence. 
 These delays and successive trials give an unconscionable ad- 
 vantage to the rich suitor or the strong corporation, able to 
 pay the expenses of the litigation and go from court to court, 
 while the poor man with a good case may be compelled either 
 to accept the first adverse decision or give a lawyer a large 
 part of his claim to prosecute the case farther on a con- 
 tingent fee. Under such a system substantial justice is lost 
 sight of, and the business of the lawyer becomes a mere ex- 
 ercise of technical skill in taking unwarranted advantages al- 
 lowed by the rules of procedure. It may well be doubted 
 whether, on the whole, justice is promoted by reviewing 
 courts. At times it has happened in most of the states that 
 the court dockets have become overburdened to such an ex- 
 tent that a case could not be reached for many years. Speedy 
 decision is of almost as much importance as right decision. 
 Long delay is a substantial denial of justice. 
 
 Although the codes in terms require brevity and simplicity 
 
898 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 in pleadings there is in the system actually followed and re- 
 quired by the courts much useless prolixity and technicality. 
 The new English system is very greatly in advance of any- 
 thing followed in any of the United States, except perhaps 
 that under the Kansas Code of 1909. The new Equity Rules 
 promulgated by the Supreme Court of the United States 
 greatly simplify and improve the practice in United States 
 courts in equity cases. 
 
 The bulk of the compiled general statutes of the various 
 states varies from one to three large volumes. Taking those 
 of Kansas, a state of medium size, we find the compilation 
 divided into 119 chapters of which thirty-four are devoted to 
 the state institutions, officers, agencies, revenues, and ex- 
 penditures, eleven to courts and their procedure, four to 
 schools, two to criminal law and practice, two to suffrage 
 and elections, two to cities, two to corporations and the re- 
 maining sixty-two to miscellaneous matters, some of very 
 slight importance. 
 
 For most of the general principles of the law administered 
 by the courts we must look to the great libraries containing 
 the works of text writers and the reported decisions of the 
 courts of the United States, the several states, England and 
 its dependencies. Numerous digests and Encyclopedias have 
 been made and become deficient and out of date as soon as 
 the last volume was published. Reports of decided cases are 
 being published in each state at such a rate as to make 
 a considerable library from the issues of a single year. The 
 work of classification of the various topics of the law is done 
 according to the view of the writer or compiler, and new 
 topics are being added from time to time. 
 
 While much of the law administered by the courts and 
 commented on in the written opinions published in the re- 
 ports is more or less connected with some statute, the full 
 exposition of the law on any subject is never to be found in 
 any statute, but must be searched out through numerous vol- 
 umes. Even the classification of the various topics of the 
 law is a matter on which the various authors have widely 
 divergent views, and much of the conflict in the decisions 
 
UxNITED STATES 899 
 
 arises from the different views of judges as to the class in 
 which a given action falls and the particular principle which 
 should control, rather than any disagreement as to what the 
 principles of the law are. In comparing different views re- 
 specting legal classification we find that the American and 
 English Encyclopedia of Law, in which the titles are ar- 
 ranged alphabetically and only what is termed substantive 
 law is included, there are sixty-one titles beginning with the 
 letter A. In the companion work published by the same com- 
 pany, the Encyclopedia of Pleading and Practice, there are 
 forty-two titles beginning with A, while the American Digest, 
 Century Edition, which is considerably more full and bulky 
 and includes both substantive law and pleading and practice, 
 has but forty-five titles beginning with A. Besides these 
 various titles, which cover some topic of law, there are 
 numerous cross references and brief paragraphs giving defin- 
 itions of words. The system followed is to give a general 
 statement of the law in the text and in very elaborate foot- 
 notes to give references to the authorities in support of it. The 
 list of abbreviations used and titles of the works to which 
 they refer covers sixty- four large pages of fine type. The 
 twenty-two volumes of the Encyclopedia of Pleading and 
 Practice contain five hundred and sixteen titles. The wide 
 divergence between the classifications of the Encyclopedias 
 and the Digest is due to the fact that in the Digest the titles 
 are far more comprehensive and further classifications are 
 made by sub-headings, for instance in the Encyclopedia of 
 Law the title Agency fills three hundred pages and is by odds 
 the most important in Vol. I, while in the Digest there is 
 nothing under the heading Agency but a cross reference to 
 the title Principal and Agent. On the other hand the Digest, 
 which divides its large closely printed pages into two columns, 
 fills 4951 columns under the title Appeal and Error, while 
 the Encyclopedia of Law has no such title, and the Ency- 
 clopedia of Pleading and Practice gives 587 pages to Ap- 
 peals, 335 to Certiorari and ninety- five to Writ of Error. 
 The system followed in England and America of develop- 
 ing the principles of the law by the written opinions of the 
 
900 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 judges, given in actual controversies decided by them and 
 contined to tlie very questions in issue, has been much ex- 
 tolled, mainly on the ground that great care is necessarily 
 exercised in the performance of the duty of determining the 
 rights of the parties before the court. It stands in sharp 
 contrast with that by which the Roman civil law was de- 
 veloped, which was largely by what were termed rescripts, 
 answering abstract questions as to the rule in a given case. 
 It may as well be confessed now as later that our system 
 is already overgrown, and the multiplication of decisions and 
 books, instead of settling and making clear the doubtful mat- 
 ters in the law, year by year introduces confusion and un- 
 certainty. There is a widely prevalent disposition among the 
 judges to refine and introduce exceptions, till what were once 
 fairly clear rules of easy application have ceased to be rules 
 and in their stead the individual view of the judge, whatever 
 it may be, can be backed with an authority from some court 
 or other, which at least seems to support it. There is now an 
 ever widening field of uncertainty as to what the rule is in 
 certain classes of cases. This works to the advantage of the 
 strong suitor, who can appeal from court to court, and the 
 most unfortunate part of the matter is that this field of un- 
 certainty is in that district which affects the interests of the 
 great combinations of capital and privilege. 
 
 Corporations and their rights, powers, duties and obliga- 
 tions, are now by far the most prolific subjects of litigation, 
 and under various headings fill more than than 3200 pages 
 of the American and English Encyclopedia of Law. The 
 main reason for this is that it is through corporations that 
 most modern business combinations are formed and new en- 
 terprises are undertaken. The field covered by them is con- 
 stantly widening and includes both new purposes and new 
 methods of accomplishing them. The laws of inheritance 
 and the distribution of the estates of deceased persons through 
 the courts occupy the next largest space. Frauds and fraud- 
 ulent conveyances of property, bills of exchange and promis- 
 sory notes, elections, landlord and tenant, homesteads and 
 exemptions and marriage and divorce are the next most 
 
UNITED STATES 901 
 
 prominent topics. It is gratifying to find that criminal law 
 has become of minor importance, and that murder and homi- 
 cide, the most prominent title of the criminal law, fills far 
 less space in the books than either of those above named. 
 
 Military law is a subject of such slight importance as to 
 require but little notice, and religious societies are no longer 
 prominent litigants. There is no more certain gauge of the 
 moral height of any society than that of the purity and 
 strength of family ties. Yet we find that while there is a 
 full consensus of opinion among thoughtful people on this 
 proposition, there is a wide divergence on the question of 
 divorce. All agree that husband and wife should be faithful 
 and dutiful, but if not what then? There are two opposing 
 theories of expediency, one that they should be held legally 
 bound to each other and forced to make the best of a dis- 
 tasteful relation, the other that when the matrimonial bond 
 has become intolerable to one, it should be dissolved by a 
 court's decree and the parties again made free to contract 
 new alliances. Perhaps the most radical defect in the laws of 
 those states which grant divorces with the greatest liberality 
 is in failing to give full weight to the claims of the offspring 
 of the union. Children have natural claims on both parents 
 and are most deeply interested in the question of divorce and 
 the breaking up of the family. Except in rare instances they 
 are not chargeable with the wrong doings of their parents, 
 but rather sufferers therefrom. A suit for divorce ought not 
 to be viewed in the light merely of a controversy between 
 husband and wife, but rather of a proceeding to disrupt the 
 family, in which the children, being innocent parties, are en- 
 titled to have their interests protected before a divorce is 
 granted. It is rarely the case that the applicant for divorce 
 is wholly free from fault. Estrangements usually result from 
 some wrong on both sides and the safer standpoint for judi- 
 cial action is that of the general interest of the children, to 
 whom the public owe a clear duty of protection. This view 
 is now taken by the laws of some states. 
 
 The rules governing the relation of parent and child are 
 few and simple yet are still tinctured with some remnants of 
 
902 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 brutality. The parent, if too passionate or stupid to govern 
 his child by reason, may beat him, and only in case of extreme 
 cruelty will the law interfere. The father may take the earn- 
 ings of his minor child and is liable for his support. It is 
 easily apparent that domestic happiness is not dependent to 
 any marked degree on the legal rules applicable to the rela- 
 tions of members of the family. The interference of courts in 
 domestic concerns seldom promotes concord or happiness. 
 The promptings of love, the mutual interests, the wholesome 
 teachings of the elders, and all the pure and refining influences 
 that nature breeds in the home of a well mated couple, are 
 vastly more potent and thorough in regulating the domestic 
 relations, than statutes or court judgments can possibly be. 
 It is only the exceptional household that is in any manner 
 affected by the rules of law administered in the courts. 
 
 The old common law idea of the domination of the hus- 
 band has been discarded, and the tendency in the United 
 States has been steady and constant in the direction of abso- 
 lute equality of rights for wives. Children also have come to 
 be looked upon as more nearly independent and entitled to 
 such measure of freedom as they are mentally and physically 
 capable of, and parents are expected to instruct and reason 
 with rather than beat them. 
 
 The rules governing land tenure and the inheritance of 
 property, though so familiar in their main features as to be 
 generally accepted as natural laws, are purely artificial and 
 arbitrary. Absolute ownership of the soil is entirely a cre- 
 ation of the law maker, impossible of practical operation to 
 the extent the law warrants, namely, an absolute title in a living 
 being to the land for all future time. There is a manifest 
 absurdity in conferring on a mortal man, limited to a brief 
 term of life, dominion over that which will remain substan- 
 tially unchanged for countless centuries to come. Nature 
 clearly and definitely limits the dominion of man, even over 
 his own body, to the term of his natural life, and all control 
 exercised by him over material things after his death must 
 necessarily be through an artificial extension of his will 
 through the operation of a positive law. All ownership of 
 
UNITED STATES 903 
 
 land without actual occupancy is purely artificial. In the 
 early settlement of new districts nature indicates simple rules 
 by which the rights of each comer are determined. He may 
 take possession of so much as he can use, and the next settler 
 must choose out of the remaining lands. Actual possession 
 and use establish the right. As numbers increase and there 
 is no longer enough land to satisfy all comers, some limita- 
 tions are of necessity imposed on the claims of occupants and 
 it becomes necessary to make land laws. Of these the world 
 presents a great variety. In the United States there is at 
 present no limit whatever to the quantity one person may 
 acquire. Land is treated as a merchantable commodity, to 
 be bought and sold without restrictions other than as to form. 
 The laws governing the conveyance of land, the making and 
 recording of deeds, leases, mortgages and other written in- 
 struments affecting the title, are all human inventions, based 
 on conceptions of expediency. 
 
 The laws of inheritance are also mere legislative creations. 
 Nature indicates that when the occupant of a house dies his 
 family should still continue in possession of it, and also that 
 the household goods and furniture and the domestic animals 
 in his possession should continue in the possession of the 
 family, but nature fixes no law for their division among 
 heirs. Houses and lands in the possession of others as ten- 
 ants of the deceased owner, if there were no legal rules of 
 inheritance, would remain in the possession of the actual 
 holders, freed from the claim of the landlord after he ceased 
 to breathe. The rules which pass the landlord's title to others 
 are arbitrary and artificial. To avoid conflict and confusion 
 it is necessary that some rules should be established. In the 
 various countries of the earth a great variety of rules exists, 
 ranging from public inheritance to primogeniture, from mak- 
 ing the estate merely an addition to the common property of 
 the community to giving all the land to the oldest son. The 
 principle of passing dominion over a large estate from father 
 to son is identical with that of the inheritance of political 
 power. In the case of great properties the public has an 
 interest in their use and management. The son of a wise. 
 
904 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 able and just king may be like his father, but is almost as 
 often stupid, incompetent and dishonest. Blood furnishes 
 no sure guarantee of capacity, especially as but half comes 
 from the father, and the heir, may exhibit the qualities of 
 some remote ancestor on either side, rather than those of his 
 father. In the inheritance of property the rule is that the 
 son of a hard, grasping, avaricious father is inclined to be 
 idle and dissolute. A very large percentage of the smaller 
 fortunes accumulated by one generation are dissipated by the 
 next. This is detrimental to the public interests, for the heir 
 as a rule is less industrious, more wasteful and often more 
 dissolute than he would have been if started in life knowing 
 that he must provide for himself. As the laws of inherit- 
 ance are purely of legislative creation, others framed on 
 radically different principles may be made at any time the 
 people become convinced either of their justice or expedi- 
 ency. Law-makers seem to have considered the question of 
 right as a limited one, affecting only those nearly related to 
 the deceased owner by blood or affinity. Manifestly the 
 question is far wider. In the case of the multi-millionaire, on 
 whose properties thousands of laborers are employed and yet 
 more thousands are dependent for their prosperity, the ques- 
 tion as to proper management of the property is of public 
 concern. It is of great importance whether the rich man's 
 son shall become the hereditary ruler of all the tenants and 
 laborers on his estate and their offspring, and whether the 
 accident of birth shall confer through a legal theory of title 
 dominion over many people. It is a question of prime public 
 importance whether laws of inheritance be established, which 
 shall deal justly with all citizens and give each a substantially 
 equal share of the earth and the accumulations of past gen- 
 erations. Shall rich ruling families be differentiated in Amer- 
 ica, as they have been in Europe, to ultimately take political 
 power as well as title to the land, or shall the principles of our 
 system of inheritance be changed with a view to the preserva- 
 tion of substantial equality among the citizens at the start, 
 leaving great wealth to be gained only by meritorious effort. 
 Is not wealth by inheritance a survival of chaotic times when 
 
UNITED STATES 905 
 
 might made right? Has it any support in morals or expe- 
 diency? The state is partial in its treatment of its citizens 
 when its laws assign to one child a vast fortune and to another 
 nothing, for it is the law alone that gives effect to the will 
 of a dead man, or assigns his estate to a particular person 
 or heir when he leaves no will. 
 
 In the books the title of master and servant is still retained 
 as expressive of the relation of employer and employee. At 
 the time of the revolution the law in most of the colonies 
 recognized the title of a master to African slaves. The civil 
 war terminated slavery. Since then the theory everywhere 
 has been that personal service is purely a matter of voluntary 
 contract, except where imposed as a punishment by the pub- 
 lic for a violation of some penal statute. The master has 
 full liberty to hire such servants as he desires, and the ser- 
 vant may choose his employer and refuse to work except at 
 such wages as he is willing to accept. In times when all in- 
 dustries are active there is little difficulty in finding employ- 
 ment and the freedom is real, except as affected by local 
 conditions and the organizations of capital and labor. In 
 periods of depression, however, large numbers of laborers are 
 discharged and can find no new employer. The least efficient 
 of the employees are first turned away and, as industrial ac- 
 tivities diminish, the ranks of the unemployed swell until 
 the idlers roam over the country as beggars in great num- 
 bers. Employers in nearly all lines of manufacturing, as well 
 as transportation, are year by year forming larger and 
 stronger combinations. The effort on their part is to ac- 
 complish results with the least expenditure of money for 
 labor. The general public is the gainer by all legitimate 
 economies in the conduct of any line of business, provided 
 it be effectually subjected to the law of competition, but a 
 favorite means of gaining unearned wealth has long been to 
 combine all competitors or destroy part of them, and, having 
 gained a monopoly, extort excessive profits from the general 
 public. Though monopolies are neither so numerous nor so 
 complete in the United States today as they were under pat- 
 ents from the crown in England in the days of Elizabeth, 
 
9o6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 organizations which have achieved more or less complete 
 monopolies are numerous and vastly more powerful and 
 profitable now than then. On the other hand the laborers 
 in particular lines of employment have formed many organi- 
 zations for the purpose of protecting their interests, and in 
 some cases of effecting a monopoly of the supply of labor in 
 a particular line by excluding all except members of their 
 organization. There is a marked difference in the principles 
 on which these opposing combinations are formed. The capi- 
 talistic organization is compact and firm. When a corpora- 
 tion is formed and its capital contributed, it does not fall in 
 pieces so long as its business proves profitable. It has unity 
 of purpose and of management. It is capital that is hazarded, 
 not the persons or the services of the stockholders. The 
 labor organization, however, from the nature of the com- 
 bination lacks cohesive force. The laborers do not combine 
 their efforts to carry on a business and distribute the returns, 
 they do not contribute capital, except some small dues, they 
 do not transfer to the organization any legal power to com- 
 mand their services. It is doubtful if the law as adminis- 
 tered by the courts would tolerate an organization that did 
 so. Yet to place organized labor in a position to contend 
 with organized capital on equal terms, it would be necessary, 
 not only that the legal power to control the services of all the 
 men in the combination should be conferred on a single head 
 or board, but that sufficient capital should be also acquired to 
 enable the laborers to live through any period of idleness. 
 Though the members of labor organizations have in many 
 instances exhibited remarkable steadfastness of purpose and 
 have endured great hardships to accomplish the purposes of 
 the organization, there is an inherent weakness, both in the 
 principles on which such combinations are effected and in the 
 poverty and consequent inability of the members to follow 
 the directions of leaders when they cannot live without wages. 
 Though the struggles between labor organizations and the 
 railroad companies, mine owners, manufacturers and other 
 great employers of labor is a matter of the highest public 
 concern and often engrosses public attention, comparatively 
 
UNITED STATES 907 
 
 little of the time of the courts is taken up with such contro- 
 versies. The title Master and Servant fills but one hundred 
 and ninety pages of the Encyclopedia of Law. This is not 
 an accurate gauge of the number of suits in the courts grow- 
 ing out of that relation, most of which are for small balances 
 of wages in the inferior courts of which no report goes into 
 the books. The questions arising on contracts for personal 
 services are comparatively few and simple. The courts merely 
 enforce the contract of the parties and, except in a very few 
 special cases, never attempt to compel the laborer to specifi- 
 cally perform his contract. 
 
 The rules with reference to the organization of corpora- 
 tions have been greatly changed during the past century. At 
 first a corporate charter was granted as a special favor, and 
 the king or parliament in England and the legislatures in 
 America fixed the powers and privileges of the corporation 
 by the terms of the charter. Now new special charters are 
 almost unknown and there has been a steady tendency toward 
 allowing corporations to be formed to carry on any business 
 that a private citizen may conduct. In this respect the ten- 
 dency has been uniformly in the direction of abolishing all 
 arbitrary rules of law, and also of allowing the corporations 
 to formulate rules in the form of by-laws which determine the 
 relations of members, stockholders, officers and employees. 
 Thus the supervising public agency, the political power, has 
 been gradually withdrawn, and the power of private lawmak- 
 ing by the corporation, steadily extended. This increased 
 freedom of organization is highly beneficial. It allows the 
 people to combine their capital, labor and energy for useful 
 purposes, and thereby achieve results which they could not 
 accomplish singly. Freedom of combination for laudable 
 ends is quite as essential to the welfare of the people as free- 
 dom of individual action. Partnerships and corporations are 
 methods of combinations in business enterprises requiring 
 either more capital or more personal effort than one alone can 
 supply. The corporate form is best adapted to great enter- 
 prises, and the railroads, telegraphs, telephones and most of 
 the great manufacturing and commercial establishments have 
 
9o8 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 been constructed through the instrumentaHty of corporations. 
 
 There is no monopoly that could not be destroyed by merely 
 taking away that on which it feeds, thus a water or gas 
 monopoly can be destroyed by a combination of those who 
 use the water or gas to supply themselves through their own 
 corporate organization. If the people along the line of a 
 railroad were to combine, build and use another to the utter 
 exclusion of the old one, the old railroad would cease to have 
 any revenue. The effort thus far has been mainly to regulate 
 monopolies by law through the political power. Where cities 
 construct and operate those utilities which are natural mon- 
 opolies, though abuses in management occur, the ownership 
 is always in the hands of those served, and they at all times 
 have the power to correct them. Where a trade monopoly is 
 formed, those suffering from its extortions may relieve them- 
 selves by combining and transacting the business through 
 their own agency. The leading difficulties in the way of 
 forming such combinations are mutual distrust and lack of 
 understanding of the principles applicable to such combina- 
 tions. The field is one so vast that no one can indicate the 
 limit of possible accomplishment. Although the activity in 
 the organization of corporations is so very great, none of 
 them have reached anything like completeness, and the largest 
 are mostly objectionable because the principles by which their 
 actions are governed are lacking in equity. Governmental 
 systems, being merely of human construction, are operated 
 mainly by arbitrary rules, founded on conceptions of expedi- 
 ency. In the effort to regulate public affairs the powers, 
 duties and compensation of public officers and servants are 
 established by fixed rules, it having been fully demonstrated 
 in other countries that undefined power will usually be abused. 
 
 There are two leading purposes to be subserved by courts, 
 the first is a public one, namely to afford a peaceful solution 
 of all controversies, and thereby prevent fights and bloodshed, 
 the second is to do justice between the parties. Most of the 
 rules by which the actions of courts are governed commend 
 themselves to the moral sense and have been adopted to pro- 
 mote justice. The desire to correct errors and secure absolute 
 
UNITED STATES 909 
 
 fairness, has, however, been carried to such lengths in the 
 system which now prevails, that the endless pleadings, mo- 
 tions, orders, demurrers, new trials, appeals, writs of error 
 and certiorari, primarily invented with the purpose of having 
 the cause presented clearly and of correcting every error of 
 the trial court and jury, have in fact resulted in such delays, 
 expense and real injustice, that radical remodelling is im- 
 peratively demanded. The idea has prevailed that supreme 
 courts could be made of men so deeply versed in the law and 
 of such soundness of judgment, that they would not only be 
 able to avoid making mistakes of their own, but could correct 
 the errors of inferior courts and juries. The fact is how- 
 ever, that there are so many technical rules of procedure to 
 be followed in presenting the case to the reviewing court, so 
 many arbitrary rules of substantive law to be applied, and 
 such a disposition among the judges of the courts of last 
 resort to refine and exhibit their learning, that there is little 
 in their decisions to commend them to the sense of justice of 
 the plain citizen. It may well be doubted whether the verdicts 
 of the juries are not on the whole far nearer just determina- 
 tions of the cases before them, than the carefully worked out 
 judgments of the highest courts. When the delays, costs and 
 vexations incident to our long process of determining a cause 
 are considered, they certainly more than counterbalance the 
 possible nearer approximation it may afford to a correct ap- 
 plication of the law. 
 
 The decisions of the private tribunals established by boards 
 of trade, exchanges and other commercial bodies are usually 
 promptly given and accepted as final, and are far more satis- 
 factory than the dilatory processes of the courts. The great 
 desideratum is a system which will insure impartiality, and 
 under which the end of litigation may be quickly reached. 
 One defect in the jury system is that it is required that the 
 jury be taken from the vicinage. Originally it was supposed 
 that their knowledge of facts would aid them in coming to 
 a right verdict. In the United States it is required that they 
 be taken from the county or district, but it is also required 
 that they shall have no knowledge of the facts. These two 
 
910 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 requirements are incompatible. Jurors of the vicinage will 
 always have some knowledge of some things affecting an 
 important case. Impartiality being so indispensable to right 
 judgment, the jury should come from a place sufficiently re- 
 mote to be wholly unacquainted with the parties and the 
 facts of the case. 
 
 A very illogical system is followed in the determination of 
 questions of fact and of law. The jury decides the facts of 
 the particular case before them. Their verdict binds only the 
 parties to that particular cause, yet the twelve men composing 
 the jury must all agree on all essential particulars, or no de- 
 cision can be had. Successive juries must be called till one 
 can be found which does agree. The supreme or other court 
 of last resort, made up of men specially trained and schooled, 
 in the law, decide, not merely what the law is in the particular 
 case, but make a precedent, binding on all inferior courts, and 
 generally so on themselves and their successors in all other 
 like causes, yet a bare majority of the judges may decide the 
 cause and establish the legal rule, no matter how strenuously 
 the minority oppose it. This lacks little of absurdity. A 
 majority might well be allowed to determine the facts, but 
 the rule of law would seem to be a most uncertain guide, if 
 some of the judges of the highest court dispute its existence. 
 Some of the states have adopted constitutional amendments 
 allowing nine jurors to find a verdict in civil causes and in 
 practice this is found to be a great improvement. Unanimity 
 may well be required in criminal causes where punishment is 
 to be inflicted. The great defect in the whole system seems 
 to lie in the division of causes into those to be tried by a 
 judge alone and those to be tried by a judge and jury and in 
 the attempt to complete a code of laws by the decisions of 
 courts in causes between private parties. A combination of 
 judge and jury with power to decide without appeal might 
 work as well in practice as the special private tribunals above 
 referred to. The Athenian system of juries made up of a 
 vast multitude, though far too tumultuous as well as ex- 
 pensive to be practicable here, suggests the idea of the selec- 
 tion of a list of men of probity and intelligence to act as 
 
UNITED STATES 911 
 
 final judges in all causes. Perhaps if the parties were al- 
 lowed to select such of them as they could agree on or, if they 
 could not agree, were required to strike the objectionable ones 
 from the list, so as to leave some convenient number to try 
 the case, more satisfactory results would be obtained than 
 now. This is merely a suggestion, for it is far easier to 
 point out defects in an existing system, than to devise one 
 which would remedy them and work satisfactorily. 
 
 In the nature of things the rules giving jurisdiction to and 
 regulating the procedure of courts are purely artificial. Free- 
 dom of choice of arbitrators and judges tends to secure im- 
 partiality and acceptance by the defeated party of the award. 
 The inherent difificulties attending the administration of jus- 
 tice are such that the ideal can never be attained in practice. 
 Facts necessary to right judgment are unknown, the memory 
 of witnesses is imperfect, the ability to state clearly and ac- 
 curately what the witness knows is rare, jurors and judges 
 fail to understand the witness as he means to be understood. 
 These difificulties inhere in the investigation of causes when 
 parties and witnesses are all perfectly fair and honest, when 
 they are not so fraud and perjury may be accepted for truth 
 and sophistry for logic. Errors will be committed and wrong 
 judgments rendered by the best conceivable court. The real 
 gauge of advancing morality is not the infallibility of judges 
 or juries but the habit of just dealings among the people. 
 The percentage of transactions which are made the subjects 
 of litigation is steadily decreasing, and in the ideal state the 
 compulsory processes of courts would be unnecessary. It is 
 a fact of profound significance that crime has diminished as 
 punishments have been made less severe. When petty larceny 
 and a long list of other minor ofifenses were punished in Eng- 
 land with death, crime was rampant and society was brutal- . 
 ized. When the state ceases to take life for any cause, the 
 sanctity of human life is better respected by the people. As 
 imprisonment for debt and seizure for the creditor of the 
 clothing and household goods of the debtor is done away 
 with, a higher standard of integrity, founded on a conception 
 of right, is established. Though the compulsory processes of 
 
912 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the law may not be safely dispensed with, a public sentiment, 
 which insists on just dealings and right conduct and which 
 educates each rising generation to advanced morality, is the 
 best guarantee of social order. 
 
 Authorities 
 
 The Histories of Bancroft, Garner, Lodge, Watson, Wil- 
 son and Winsor have been consulted on matters of history. 
 For the provisions of the early colonial charters the published 
 charters have been examined, and for the provisions of con- 
 stitutions and statutes the official publications have been used. 
 
CHAPTER XXVI 
 
 Modern Mexico, Central and South American States 
 
 South America was discovered by Columbus in 1498 though 
 he did not learn the extent of the continent. Following his 
 discoveries the Spaniards devoted their attention mainly to 
 the West Indies, Mexico and South America, and within fifty 
 years thereafter had made conquests of those parts that dis- 
 played most gold and silver and were inhabited by the most 
 advanced people. The purpose of the invaders everywhere 
 was conquest and robbery. Natives were ruthlessly slaught- 
 ered and their property destroyed or carried away as suited 
 the caprice of the victors. The native population of the West 
 Indies was soon nearly exterminated. On the main land 
 there was great slaughter of people and destruction of prop- 
 erty at first, but later more friendly relations were established 
 and there was much intermixture of blood with the natives. 
 Owing to the number of the Indians and the extent of the 
 country over which they were scattered most of them survived 
 and their descendants, including full bloods and mestizos, 
 constitute a large part of the population in all the principal 
 states. The governments of the Mexicans, Peruvians and 
 other most highly civilized nations were destroyed and 
 Spanish military rule imposed in place of them. Along with 
 the Spanish armies came priests at a time when religious 
 bigotry was most virulent. Pope Sextius IV had established 
 the Holy Office in Spain in 1478, fourteen years before Co- 
 lumbus made his discovery. The gloomy cruelty of the re- 
 ligion of the Aztecs in Mexico was well calculated to 
 stimulate the zeal of the Catholic priesthood, and the Inquisi- 
 tion did bloody work in America as well as in Europe. Some 
 conversions of natives were made and in time some of the 
 spirit of genuine Christianity was manifested, but viewed at 
 large the conquest was dual and the people were subjected to 
 
 913 
 
914 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the domination of both a mihtary and a priestly despotism. 
 Spanish law was introduced and Spanish methods of govern- 
 ment prevailed in all the subjugated countries. The ancient 
 industrial organizations of Mexico and Peru were disrupted 
 and no equally efficient systems put in their places. Wealth 
 was sought in the mines of precious metals and the natives 
 were enslaved and forced to work them. The King of Spain 
 assumed ownership of the face of the earth, without regard 
 to the occupancy of the natives, and parcelled it out to favo- 
 rites in great tracts. In the islands where the natives had been 
 exterminated African slaves wxre employed to till the soil, 
 but on the main land there were sufficient Indians who were 
 compelled to do it. Cattle, horses, grain and fruits were in- 
 troduced from Europe, and some improvement in agriculture 
 resulted from Spanish methods, but industrial development 
 along any line was nowhere the leading purpose of the in- 
 vaders. The search for gold induced them to encounter 
 dangers and endure hardships and throughout the continent 
 they were very active as explorers and pioneers. 
 
 Brazil was discovered by both the Spanish and Portuguese 
 in 1500, but the Portuguese gained ascendency and effected 
 permanent settlements along the coast. The plan first adopted 
 by the Portuguese government was to grant captaincies, each 
 extending fifty leagues along the coast to those who should 
 undertake to make settlements. The first captaincy was lo- 
 cated at S. Vincente in 1531, and others followed, so that by 
 1549 they were of such importance as to induce the crown 
 to establish a governor-general at Bahia. Rio de Janerio was 
 settled in 1567. The early settlements of Brazil differed from 
 those of the Spanish colonies in the purposes of the settlers, 
 which were to cultivate the soil and raise live stock rather 
 than search for gold. This may have been due to the 
 •fact that the natives of the coast of Brazil did not display 
 gold and silver as the Peruvians did, rather than to a differ- 
 ence in the characters of the Spanish and Portuguese. Be 
 this as it may the subsequent development of the different 
 colonies shows the difference between the prosperity resulting 
 from the mere acquisition of gold by robbery and that which 
 
MEXICO, CENTRAL AND SOUTH AMERICA 915 
 
 follows useful industry, cultivation of the soil and the breed- 
 ing of cattle, horses and sheep. The gold so long as it was 
 retained produced nothing and neither fed nor clothed the 
 possessor. It could be used in making purchases once, and 
 once only. The sugar and coffee plantations and the flocks 
 and herds on the grass lands grew, multiplied and year by 
 year yielded larger returns. Nature multiplied the rewards 
 of industry and thrift and passed them on to succeeding 
 generations, but the gold of the conquerors was sterile. But 
 the Portuguese were not content with the proceeds of merely 
 their own labors. They enslaved the natives and imported 
 great numbers of slaves from Africa. Their prosperity how- 
 ever was seriously handicapped by trade restrictions imposed 
 by the Portuguese government, which prohibited all direct 
 dealings with other nations. In 1578 Portugal and its Ameri- 
 can possessions passed under the dominion of the Spanish 
 crown and so continued till the restoration of the royal house 
 of Portugal in 1640, after which Brazil was again a Portu- 
 guese dependency. There was some fighting with British, 
 Dutch and French rivals as v/ell as with the natives, but the 
 Portuguese seem to have been more successful in establishing 
 friendly relations with the native tribes than the others and 
 were able to hold their ground. 
 
 As a consequence of the invasion of the Iberian Peninsula 
 by the French under Napoleon the royal family of Portugal 
 sailed for Brazil in 1807, accompanied by many of the nobil- 
 ity, and established the court there. Brazilian ports were then 
 opened to trade with other nations and a great impetus was 
 given to all kinds of industry. The court was maintained in 
 Brazil until 1821, and the unprecedented situation of a Euro- 
 pean kingdom ruled from America was presented in the gov- 
 ernment of Portugal by the King in Brazil. The King then 
 returned to Portugal, leaving his son Dom Pedro as regent 
 of Brazil. The political independence of Brazil was agitated 
 soon after the departure of the king and on Dec. i, 1822 Dom 
 Pedro was crowned Emperor of Brazil. A constitution was 
 adopted and sworn to by the King March 25, 1824. Portugal 
 recognized its independence in 1825. Dom Pedro and his 
 
9i6 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 son who succeeded him were very popular as rulers, and 
 Brazil escaped serious political disturbances till near the close 
 of the century. But republican sentiment grew to such 
 strength that in 1889 ^ bloodless revolution took place, the 
 royal fanlily was sent to Portugal, and on Feb. 24, 1891 a 
 republican constitution was adopted which established a fed- 
 eral government and erected the former provinces into states. 
 This constitution is in some respects the most advanced of 
 any yet adopted. 
 
 Spanish domination over the rest of Latin America con- 
 tinued until 1 810 when revolutionary movements began in 
 Argentina, Chile and Mexico. By the end of twenty years 
 thereafter Spain had lost substantially all her foothold on the 
 continent, but retained Cuba and Porto Rico until 1898. 
 From the first conquest till the end of Spanish rule the rela- 
 tion of Spain to her American possessions was that of a 
 distant military ruler. From sheer necessity the colonists, 
 especially along the Rio de la Plata, were at times forced to 
 effect military organizations of their own for protection 
 against the Indians and hostile Europeans, but nothing like 
 efficient local self-government was established till after allegi- 
 ance to Spain had been renounced. The superior civilization 
 of the natives of Mexico and Peru over those of most other 
 parts of America seems to have complicated the problem of 
 establishing settled free institutions rather than to have sim- 
 plified it. In Mexico and South America the Indians and 
 mixed races still constitute a large majority of the popula- 
 tion, but in varying combinations in the different states ; thus 
 in Mexico about fifty per cent of the whole are Indians, thirty 
 per cent Mestizos, and the remainder of Spanish and other 
 European stock with a few Africans and Asiatics ; in Peru 
 fifty-seven per cent are given as Indians, twenty-three per 
 cent Mestizos and the balance Spanish descendants with a few 
 foreigners, negroes and Chinamen; while in Brazil about 
 forty-five per cent are white, thirty per cent mixed white, 
 negro and Indian in varying combinations, fifteen per cent 
 Africans and ten per cent Indians. In recent years there has 
 been an influx of Europeans, especially into Argentina and 
 
MEXICO, CENTRAL AND SOUTH AMERICA 917 
 
 Chile, and Americans from the United States are construct- 
 ing Hnes of railroad and establishing business enterprises and 
 combinations in increasing numbers, so that there is a well 
 marked tendency toward similar conditions with reference to 
 the intermixture of the people from all parts of the world 
 under free institutions to those in the United States. But 
 in the United States the Indians are now negligible as a politi- 
 cal element, while throughout Latin America they are still 
 dominant in many parts and in fact furnish the leaders in 
 many of their struggles. The superior industry and thrift of 
 the southern races has enabled them to survive in contact with 
 the whites, notwithstanding the oppression to which they have 
 been subjected, while the indolent and improvident northern 
 tribes have faded away. 
 
 A Spanish settlement was made in Jamaica in 1509, in Cuba 
 in 1 511, and in Venezuela in 1520; Mexico was conquered in 
 1519, Peru in 1532, and Buenos Ayres was founded in 1535. 
 It was not till 1607 that the English effected their first perma- 
 nent settlement in the United States. Spanish dominion was 
 asserted over a territory of more than double the extent of the 
 present continental possessions of the United States at a 
 period almost a century before the settlement of the United 
 States commenced, yet the total population of Latin America, 
 including the descendants of the native races, is less than 
 two-thirds that of the United States. The difference in the 
 progress of the northern and southern countries is a theme 
 worthy of extended study, but it can be given only brief 
 consideration in this work. The Spanish colonies all started 
 as dependencies of the Spanish crown ruled by viceroys and 
 military force, while the British colonies were planted under 
 charters encouraging organization for self -protection and 
 local self-government. Spanish favorites were granted vast 
 tracts of land, and so long as Spanish rule continued the in- 
 habitants were divided into a few rich, a multitude of poor 
 and a small middle class. In the British colonies there were 
 some large grants of land, but small farms tilled by the own- 
 ers were the rule, especially in New England. Illiteracy was 
 the rule in Latin America and learning was confined to the 
 
9i8 EVOLUTION OF GOVERNME-NTS AND LAWS 
 
 few and mainly of the priestly, religious sort, while in the 
 north it was more general and rigidly Puritan in New Eng- 
 land. At the time of the revolt of the British colonies there 
 were more Europeans in Latin America than in those colonies 
 but they were distributed over a much greater territory, ex- 
 tending from Santa Fe, New Mexico to the settlements in 
 Chile and Argentina. The West Indies then produced sugar, 
 tobacco and other products to which they were especially 
 adapted in such quantities as to make trade with them a mat- 
 ter of importance; the plains of the southern half of South 
 America offered pasturage without limit and Brazil was al- 
 ready noted for its coffee. Though gold and silver from the 
 mines continued to allure the Europeans, the value of the 
 products of agriculture and the herds far exceeded that of 
 the mines. 
 
 The ships which transported the precious metals from the 
 Spanish colonies were tempting prizes, and pirates infested 
 the southern seas and found secure hiding places on the 
 islands and along the coasts. The code of morals of the 
 Spanish conquerors which was applied in dealing with the 
 natives answered the requirements of the pirates in their 
 operations. The West Indies were coveted by other European 
 powers: dominion over them was determined by the law of 
 might, and Spain was unable to hold all of them. In Mexico 
 the authority of Spain was maintained without serious diffi- 
 culty till the revolution, but in South America there were 
 many serious conflicts with the natives and occasional wars 
 over the conflicting claims of Europeans. 
 
 In 1810 the spirit of revolt broke out in Mexico, Argentina, 
 Chile and other parts of America, and continued to spread 
 and grow in force till an end was put to the authority of 
 Spain in all of her continental possessions. Republics were 
 established with constitutions modelled after, though differ- 
 ing in some particulars from, that of the United States, but 
 the people were not able to rid themselves at once of the evils 
 of military rule. The necessity for the long struggle to gain 
 orderly liberty arose from accepted legal theories of prop- 
 erty, the structure of society and the characteristics of the 
 
MEXICO, CENTRAL AND SOUTH AMERICA 919 
 
 people. Royal grants had given dominion to favorites over 
 vast tracts of land, and the multitude of the poor v^ere virtu- 
 ally slaves. There was no common school system and only 
 the children of the rich were educated. What is commonly 
 termed the middle class was wholly wanting on the great 
 estates and few in numbers anywhere. Trade developed as 
 products of the land increased, but there was little tendency 
 to improve on primitive methods of manufacturing coarse 
 fabrics and crude implements. There were no great business 
 combinations establishing common interests or educating to 
 concert of action in peaceful pursuits. Such conditions have 
 always invited the combinations of the robber and military 
 adventurer. Where the avenues of success in legitimate in- 
 dustry seem closed or surrounded with intolerable difficulties, 
 the warlike instincts of the savage assert themselves and 
 bold spirits lead reckless followers in attempts to substitute 
 their forcible mastery for that asserted under the law. While 
 nature offered the most bounteous provisions for human wel- 
 fare throughout the continent, the relations of men to each 
 other were such as to entail misery and suffering on a large 
 part of the people during much of the time. 
 
 Notwithstanding these untoward conditions able, educated 
 men disseminated high ideals of political organization 
 throughout Latin America and governments were established 
 based on principles of liberty, equality and law. The strug- 
 gle to overcome the unsocial conditions has been long and 
 often discouraging, but of late the progress in all the leading 
 states of South America has been most marked and gratify- 
 ing. Following the establishment of republics immigration 
 from all the nations of Europe was encouraged and the pro- 
 cess of making new states out of a combination of vigorous 
 people of different nationalities, all admitted on an equal 
 footing, has gone on with constantly accelerating speed. , Co- 
 lombia led in the line of education and established a com- 
 pulsory school system in 1870, and the other states have 
 made much progress in establishing educational institutions. 
 The element of educated people above immediate want, yet 
 under the necessity of being useful, is growing steadily in 
 
920 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 numbers and influence. While many of the rich have grown 
 vastly richer from the general prosperity, the ratio of the 
 abjectly poor has been materially diminished. The process 
 with which we are so familiar in the United States of organ- 
 izing large industries, importing great numbers of cheap 
 laborers for the rough work connected with them, educating 
 them and their children and soon seeing them self-reliant 
 and often leading citizens is now fairly under way in the 
 leading South American states. This process has been viewed 
 with much apprehension in the United States and has its dis- 
 advantages, but the prejudices which have been manifested 
 successively against Irish, German, Scandinavian, Italian, 
 Pole, and Russian laborers have given way one by one, and 
 their children are taken into full fellowship as American citi- 
 zens with little or no discrimination against them on account 
 of the nationality of their parents. The problem of assimi- 
 lating Africans and Asiatics is one of more difficulty, but 
 education and even handed justice are found to be all that is 
 necessary to render it possible for all races to become mutu- 
 ally helpful and prosperous. 
 
 After a century of effort to establish orderly popular gov- 
 ernment the South American states are enjoying general tran- 
 quillity and prosperity, and in some particulars lead rather 
 than follow the march of civilization. Mexico was afflicted 
 with almost constant civil war from the revolt of 1810 till 
 the accession of Diaz in 1884. He maintained order and ob- 
 served the forms of constitutional government without much 
 regard to the substance. Through requirements of unobtain- 
 able proofs of title to lands his government confiscated the 
 holdings of multitudes of poor peasants for the enrichment 
 of favorites. He encouraged the investment of foreign capi- 
 tal, and during his long rule many miles of railroad were built 
 and many new industries established, but all on the insecure 
 basis of a vast multitude of illiterate homeless poor, at the 
 mercy of either great landholders or corporations, with re- 
 liance on military force to preserve order. Following his re- 
 election in 1 9 10 a revolution caused him to leave the country, 
 and on May 25, 191 1, Francisco I. Madero became provisional 
 
MEXICO, CENTRAL AND SOUTH AMERICA 921 
 
 president. Since the overthrow of Diaz the weakness of the 
 social structure of Mexico has again become apparent. There 
 are not enough people schooled in the principles of govern- 
 ment and devoted to social order to curb the ambitions of 
 immoral leaders. The brief career and tragic death of Madero 
 and the subsequent struggles of rival leaders give again a 
 most unhappy illustration of the evils attending ignorance 
 and oppression. The progress in industrial development 
 which had been made is not merely at a stand still but retro- 
 gression has set in. The task of establishing order and justice 
 through the popular elements as they now exist is one of 
 great difficulty, but real progress can only come through a 
 public sentiment that condemns the bloodshed and robbery 
 that has become prevalent, and the organization of a public 
 force sufficient to maintain order and used for the protection 
 of rights instead of the perpetration of wrongs. 
 » The Latin American states all have constitutions framed 
 on the general lines of that of the United States, but most of 
 them are much more elaborate in details. All distribute the 
 governmental powers among three separate departments, ex- 
 ecutive, legislative and judicial, with a president as executive 
 head, two houses in the legislative branch and judges inde- 
 pendent of both. Councils of State variously composed, un- 
 der different names and with differences in powers and 
 functions are provided for in the constitutions of Chile, 
 Mexico, Colombia, Ecuador and Peru. There are differences 
 in the terms of office, thus in Venezuela the term of the presi- 
 dent is two years, in Mexico, Brazil, Ecuador and Honduras 
 it is four years, in Chile five, and in the Argentine Republic 
 and Colombia six years. The terms of deputies or repre- 
 sentatives are two years in Ecuador and Mexico, three years 
 in Brazil and Chile and four years in the Argentine Republic, 
 Colombia, Venezuela and Honduras, and of senators four 
 years in Mexico, Equador and Venezuela, six years in Colom- 
 bia and Chile and nine years in Brazil and the Argentine Re- 
 public. Judges of the highest courts have terms of four years 
 in Venezuela, and Honduras, six years in Mexico and Ecua- 
 dor and during good behavior in the Argentine Republic, 
 Brazil, Colombia and Chile. 
 
922 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 The constitutions of Chile of 1833 and of the Argentine 
 RepubHc of i860 abolished slavery and prohibited the slave 
 trade at times when slavery was the most noticeable institu- 
 tion maintained by law in nearly half of the United States. 
 The more recent constitutions also show the march of ideas 
 and contain good provisions not to be found in that of the 
 United States. The constitution of Brazil abolishes the death 
 penalty except under military law in time of war, and that of 
 Venezuela abolishes it without any reservation* On the sub- 
 ject of waging war Brazil has the honor of taking the most 
 advanced ground in its fundamental law of any nation. Arti- 
 cle 88 reads: "The United States of Brazil shall in no case 
 undertake a war of conquest directly or indirectly of them- 
 selves or in alliance with another nation." Congress is em- 
 powered "to authorize the government to declare war, if 
 there is no opportunity for arbitration or if arbitration has 
 failed, and to make peace." The five Central American States 
 in 1908 established the Central American Court of Justice 
 under a treaty which binds them to submit to its judgment 
 "all controversies or questions which may arise among them 
 of whatsoever nature, and no matter what their origin may 
 be, in case the respective departments of foreign affairs should 
 not have been able to reach an understanding." Kings and 
 hereditary rulers of all kinds may regard it as inexpedient for 
 them to abstain from the use of military force to further their 
 ambitions, but the interests of the people and the moral law 
 are always opposed to war. It is the interests of rulers and 
 privileged classes only that are likely to be adversely affected 
 by the judicial settlement of all international disputes. The 
 welfare of the whole people of all of the nations would be 
 promoted by a universal treaty of arbitration similar to that 
 of the Central American States. 
 
 Argentina, Chile and Ecuador support the "Apostolic Ro- 
 man Catholic church" and Colombia recognizes its right to 
 administer its own affairs but without formal recognition as 
 the religion of state. The constitution of Mexico provides, 
 "The state and church are independent of one another. The 
 congress may not pass laws establishing or prohibiting any 
 
MEXICO, CENTRAL AND SOUTH AMERICA 923 
 
 religion," and "The simple promise to speak the truth and 
 to comply with the obligations which have been incurred, 
 shall be substituted for the religious oath, with its effects and 
 penalties." That of Brazil contains the following: "No cult 
 or church shall receive an official subsidy nor have relation 
 or dependence or alliance with the government of the Union 
 or of the states." 
 
 Viewed as a whole the recent progress of the Latin states 
 has been quite rapid. Steadily advancing moral standards 
 are being adopted and the curse of war is less frequent in its 
 visitations. The Argentine Republic, Brazil and Chile espe- 
 cially exhibit growing industries and commercial activities 
 and an inclination to seek all that is best in improved sys- 
 tems of organization, not for the destruction of mankind by 
 war but to benefit them through combinations for good 
 purposes. 
 
 Authorities 
 
 Glynn : Foreign Constitutions. 
 
 Dodd: Modern Constitutions. 
 
 Baldwin: The New Era of International Courts. 
 
GENERALIZATIONS 
 
 I. Poverty of History 
 
 The earliest records that have come down to us are those 
 of the Egyptians, Babylonians, Aryan invaders of India, and 
 Chinese. Each of these people had their own written lan- 
 guage, that of the Chinese being so radically different from 
 the others as to indicate no probability of suggestion from 
 the others. The others bear no close resemblance to each 
 other, yet may all have been outgrowths from the same primi- 
 tive suggestion. All dwelt between the twentieth and thirtieth 
 degrees of north latitude and all were Asiatics, except the 
 Egyptians who inhabited a small district in the northeast 
 corner of the African continent. The extent of the countries 
 inhabited by them and the Israelites and other tribes with 
 whom the Egyptians and Babylonians came in contact and 
 of whom we have any very early account could not have ex- 
 ceeded one-tenth the area of Asia. We have no records of 
 any other people extending back to even one thousand years 
 B.C. We have no knowledge of the governments or laws of 
 the people who dwelt in the balance of Asia and Africa, or 
 in any part of Europe or America prior to that time. Greek 
 and Roman records take us back less than three thousand 
 years, less than one hundred generations of men. When we 
 consider how slowly the art of writing and reading was 
 disseminated and the state of comparative isolation in which 
 the various people dwelt, it is not surprising that the lessons 
 to be drawn from very early times are so meager. The 
 Chinese constructed a written language and a theory of gov- 
 ernment and system of laws under which one-fourth of the 
 people on the earth now live. At the other end of the line 
 of early civilization the Egyptians in a far smaller country 
 produced their peculiar civilization. Each of these people 
 were substantially isolated from the rest of the world for 
 
 924 
 
GENERALIZATIONS 925 
 
 long periods of time and were able to live in peace in a very 
 fertile country substantially secure from outside foes under 
 conditions favorable to the study of agriculture and the arts. 
 Babylon was also located in a very fertile valley and flourished 
 for a long time, but was always exposed to attacks from with- 
 out, and finally went down before the Persians. The con- 
 querors of India maintained their ascendency by their arms 
 and religious teachings and still preserve their caste superi- 
 ority. T he idea of government generally entertained by all 
 these people throughout all the ages was unlimited paternal 
 power m a single monarch, who however was expected to rule 
 in arcnrdanre with established laws. All authority centered 
 in and emanated f romthe king! No great representative body 
 was chosen by the people to express their views or check the 
 abuses of power. In their religious and classical books the 
 Chinese and Brahmans expressed just sentiments concerning 
 the legitimate functions of government, but they failed to 
 devise effectual checks to prevent the abuses of power. 
 
 The record of European civilization starts with the Greeks 
 and Romans and at a period very much later than that of the 
 Egyptians, Babylonians and Chinese. The accessible accounts 
 of their public doings are much more full, and their influence 
 on western civilization has been much more potent. While 
 the Greeks tried many experiments and exhibited wonderful 
 brilliancy and vigor, their governmental structures were rela- 
 tively small and shortlived. The Romans were more success- 
 ful and steadily extended their system of government and 
 laws till it covered southern and western Europe, northern 
 Africa and Asia Minor. Their empire went to pieces before 
 the onslaughts of the northern and eastern tribes and the ter- 
 ritory covered by it is now divided among the nations of 
 Europe and with the Mohammedan Turks. Of the peculiar 
 civilizations that developed in Mexico, Central America and 
 Peru we have no native historical accounts, and the European 
 observers saw them for only a short time. They had no writ- 
 ten language but the Mexicans had made some progress in 
 picture writing and the Peruvians used the quipu for records 
 and messages. Their civilization developed in isolation and 
 
926 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 SO far as we know without being influenced by suggestions 
 from without. 
 
 Since the discovery of America and of the ocean routes to 
 India and the far east, new conditions have existed and the 
 people of the various countries have from time to time felt 
 the force of external impulses. Instead of delving into do- 
 mestic history for precedents in the structure of governments, 
 contemporaneous examples, adapted to modern needs and 
 conditions are now more regarded by the people of every 
 nation. 
 
 2. Methods of Acquiring and Conferring Political 
 
 Power 
 
 The influence which operates most powerfully and swiftly 
 in promoting concert of action for public purposes is war, 
 present, threatened or contemplated. The exigencies of war 
 demand combination of all those having common interests 
 and concentration of authority to direct the movements of 
 all in a single head. The most primitive political power is 
 that of the leader of a tribal war party. Such leaders have 
 been found everywhere and in all ages among savage tribes. 
 The duration of the leadership has depended on his capacity, 
 the needs of the tribe and their wishes and purposes. The 
 leader's authority over people in the hunter state rarely ex- 
 tends beyond his immediate tribe. Pastoral and agricultural 
 people who can make provision for the support of larger 
 bodies of men for longer periods effect larger and more 
 permanent combinations. The general rule has been that 
 the larger the combination the more arbitrary and despotic 
 the power of the leader. Ignorance, illiteracy, poverty and 
 inadequate means of communication limit and condition the 
 extension of power. So far as we are informed the only 
 large combinations evolved in America by the aborigines 
 were those in Mexico and Peru where the people had made 
 much progress in agriculture and manufactures and in build- 
 ing, roads, the transmission of messages by runners and pic- 
 ture and sign language. The earliest known Egyptian and 
 Asiatic conquerors were backed by industrious multitudes 
 
GENERALIZATIONS 927 
 
 who provided for their armies, and knew the use of written 
 words. Numberless mihtary despotisms over more or less 
 extensive territories have been superimposed on existing sys- 
 tems of government by rnilitary leaders, of whom Alexander, 
 Caesar, Charlemagne, Genghis Kahn and Napoleon are con- 
 spicuous examples. The common characteristic of all such 
 leaders has been ruthless destruction of human life to further 
 the ambition and often to gratify the malice of the leader. 
 
 The patriarchal idea of government typified by that of the 
 imperial government in China and which prevailed quite gen- 
 erally throughout Asia, though despotic in character, was in 
 some measure an outgrowth of the multiplication of families 
 and tribes by natural increase and the extension of the author- 
 ity of the patriarch over the enlarged family. The power of 
 the patriarch has usually been supplemented by military force 
 as occasion has been presented until the great kingdom or 
 empire has been established. Military force has been the 
 main instrument employed in the formation and perpetuation 
 of most of the great governments throughout all historic 
 times. 
 
 Next in potency and universality of employment have been 
 religious teachings. The religious beliefs and the supersti- 
 tions of a people are the prod\icts of suggestions from their 
 environments, and of fear, desire, hope, imagination, and in- 
 spiration. They are gross and absurd or pure and exalted 
 according to the capacity and character of those who propose 
 them. In Peru and other countries where cloudless skies pre- 
 vail the sun has been adored as the great life-giving power. 
 The early mariners of the Mediterranean Sea feared the 
 wrath of Neptune, god of the sea. In the mountains and 
 plains of northern India Indra, the god of storms was seen in 
 the tempests. Among warlike people, the god of battle under 
 a great diversity of names, Siva, Jehovah, Mars, Thor, Allah, 
 has been called on for aid in bloody strife. Other gods in 
 endless variety have been named to meet the requirements of 
 the situations with which tribes and nations have been con- 
 fronted. That religious impulses are most potent in influen- 
 cing the conduct of the people is patent to all intelligent 
 
928 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 observers. This has led crafty men in all ages and countries 
 and in all stages of social development to use the beliefs 
 and superstitions of the people as a means of mastery over 
 the multitude. Occasionally a man has appeared v^ho could 
 drav^ a multitude to his support by advancing a new creed 
 or a modification of an old one like Mohammed, but ordi- 
 narily accepted beliefs have been taken advantage of. The 
 methods of utilizing these beliefs and the special purposes 
 for v^hich they have been employed are as varied as the human 
 mind can readily conceive. The superstitions of savages have 
 been utilized to influence the actions of one or a number and 
 to gain merely a temporary or a continuing mastery. The 
 religions v^^hich combine the purest ethical principles with 
 their beliefs have been found the most serviceable. Dread 
 of reptiles, beasts and birds has led savages to attribute super- 
 natural powers to them and people so highly civilized as the 
 ancient Egyptians and Hindoos have deified them. The 
 Chinese dragon, the grififin and other imaginary monsters are 
 fanciful extensions of the pantheon. Whatever the particular 
 form of the superstition, the medicine man or the priest 
 claims special relations and influence with the supposed super- 
 natural power, teaches the multitude that such relation exists, 
 magnifies its potency, claims ability to use it for their good 
 or ill here or hereafter, and induces obedience to him through 
 hope and fear of the supernatural and incomprehensible. 
 
 In the more advanced states of society religious domina- 
 tion has been at times distinct from the secular, but far more 
 frequently in combination with it. The combinations have 
 taken a variety of forms. The early Brahman priests com- 
 bined with the military order of their race to secure their 
 ascendency. The priests taught the mysteries of their reli- 
 gion, the superiority of their caste, the secular power of the 
 military men and the duty of all others to respect Brahmans 
 and Cshatriyas. Moses led the children of Israel with the 
 aid of Aaron as his mouthpiece in religious instruction. The 
 Greeks consulted their oracles, some of the most noted of 
 which professed complete independence. The Church of 
 Rome has ruled mainly by the use of ecclesiastical expedients, 
 
GENERALIZATIONS 929 
 
 but always with some aid from the temporal powers and at 
 times by the use of mihtary force. Most of the great and 
 enduring despotisms have closely combined a priestly system 
 with military power. In the Chinese, Mohammedan, Russian 
 and ancient Peruvian empires there was strict identity of head 
 in ecclesiastical and temporal government. The emperor, the 
 caliph, the czar and the inca were each at the same time 
 supreme representatives of the overruling spiritual being and 
 fountains of all temporal power in their dominions. Though 
 the taboo among Polynesians and the gross superstitions of 
 African and American savages have been used with great 
 effect, they have never afforded a foundation for the erection 
 of any great or enduring empire. The greatest priestly com- 
 binations have been built on more lofty religious conceptions. 
 Chinese philosophy and' the religious teachings of Gautama 
 have been utilized in combination with some gross supersti- 
 tions in maintaining rulership over the Chinese multitudes. 
 Mohammed, the image-breaker and apostle of one living God, 
 propagated the word by the sword with irresistible power and 
 sought to forcibly reform many prevailing abuses. The Czar 
 as the head of the Greek church has led his armies and wielded 
 his bloody despotic powers in the 'name of the meek and 
 lowly Prince of Peace. The Inca as the high priest of the 
 Sun stood at the head of the religious establishment and was 
 at the same time possessed of all temporal power. The Greeks 
 and Romans in accordance with their democratic ideas took 
 the gods of all the peoples into their Pantheon, and the Greeks 
 especially allowed their gods to take opposing sides in their 
 conflicts and war with each other. Though the Romans con- 
 sulted their priests and augurs and paid great regard to re- 
 ligion, the secular power dominated till the fall of the empire. 
 The Papal power, extending over Europe, into Asia and 
 Africa and then America is unique in character. Its basis is 
 the same as that of the Greek church, but it has stood through 
 so many centuries as a power apart from and much of the 
 time superior to the soverigns of the Catholic nations. Kings 
 and emperors, while claiming unlimited temporal power, have 
 acknowledged the spiritual mastery of the Pope. Through- 
 
930 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 out all the dark ages the priesthood monopolized nearly all 
 the learning, and temporal rulers were dependent on them 
 to teach the ignorant multitude the doctrine of the divine right 
 of kings to rule and the religious duty of the people to submit 
 and obey. In return for this service the kings gave them title 
 to lands and allowed them to collect tithes and other revenues 
 for the church. Thus there was a close confederacy between 
 the spiritual and temporal rulers, giving mutual support to 
 each other's authority. The breaches between the clergy and 
 the crown paved the way for emancipation from the religious 
 yoke and afterward for political freedom. In recent times 
 there is a marked tendency to completely divorce church and 
 state. 
 
 The third method of acquiring political power is by the 
 voluntary choice of the people for the accomplishment of their 
 purposes. This method has been far more generally employed 
 by people in all parts of the earth than is commonly realized. 
 The American Indians and most other savages chose their 
 chiefs and determined most of the important affairs of the 
 tribe in a general council of all the men. Democratic assem- 
 blies are not strangers in the greatest despotisms. In the vil- 
 lages of China and Russia the people have long been 
 accustomed to choose their head men and manage their local 
 affairs. A similar village system has long prevailed in India. 
 The ancient Persian monarchs ruled most of their subjects 
 through a tribute system, and the villages were free to regu- 
 late their local affairs through the elders and patriarchs 
 chosen or recognized by them. In Europe democratic insti- 
 tutions were not limited to the Greek and Roman cities of 
 early times, but were common in the cities of Italy, Germany 
 and Russia in medieval times. Strictly democratic institu- 
 tions were universally confined to the people dwelling within 
 a city or small district of country. This resulted from the 
 necessity for consultation and public gatherings of all, which 
 was only practicable where the people were in close contact 
 with each other and had common interests and purposes. 
 Though the Roman republic was extended into distant prov- 
 inces, no system of general representative government was 
 
GENERALIZATIONS 93i 
 
 built. The general affairs of the republic were regulated from 
 Rome, and the local affairs in the provinces were managed 
 by the people through their domestic governments. It is still 
 impracticable for the multitude to gather from all parts of 
 any large district of country and transact public business in a 
 general assembly of all. Direct action of all the people on 
 matters of general policy has become possible through the 
 aid of printing presses and improved facilities for the trans- 
 mission of information and consultation between people dis- 
 tributed over a large territory. We now can act directly 
 through the ballot, not only on constitutions but on general 
 laws of all kinds that are referred to the people for approval 
 or rejection. Brief terms of authority have been the rule in 
 all democracies. Great activity and rapid changes in the 
 official system and the purposes of the community as well as 
 in the persons chosen as leaders have occurred everywhere. 
 Diversity of conditions seems to render the management of 
 purely local affairs a matter which should be confided to the 
 people concerned. Outsiders are in no position to act intel- 
 ligently and have no sufficient motive for forming correct 
 judgments concerning the interests of other communities. 
 The number of public questions as to which the multitude can 
 inform themselves at any given time is necessarily limited and 
 the highest measure of success in popular government is de- 
 pendent on the submission of each question to the body of 
 voters or to such representatives of them as can give it the 
 best consideration and will act for the interest of the people 
 concerned. 
 
 It is only in modern times that popular government has 
 been extended by the selection of representatives chosen to 
 act in place of the multitude in matters affecting more people 
 and larger district than can meet in general assemblies. The 
 principles of representative government are simple and readily 
 understood. The whole country is divided into such prov- 
 inces and districts as seem necessary or convenient 'for the 
 regulation of their affairs and the transaction of public busi- 
 ness in them. The United States of America may perhaps 
 justly claim to have been the pioneer in forming a representa- 
 
922 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 tive system, adapted to unlimited extension among homo- 
 geneous people. The ascending series of general political 
 divisions is towns, counties, states and United States. The 
 people of each of these divisions choose the officers who con- 
 duct the public affairs of all the districts within which they 
 are included. Aside from these divisions there are the cities 
 with varied plans of representative city government, judicial 
 districts and districts from which members of the legislative 
 bodies are chosen. While the United States has ruled and 
 still rules territories and dependencies through the general 
 government without allowing either full local self-government 
 or representation in the general government, such rulership 
 is outside of and opposed to the general principles on which 
 the government is constructed. The theory adopted in this 
 regard has been that such government has been merely tempo- 
 rary and preparatory to the establishment of the general sys- 
 tem followed in the states. The general government of the 
 United States is of limited powers conferred for general pur- 
 poses by the constitution or implied from it. All other po- 
 litical power is reserved to the states and the people thereof. 
 The value and efficiency of all these governmental agencies 
 is dependent on choice of representatives. The ever present 
 difficulty is for the people to know which men will act for the 
 best interests of the public, and which will sacrifice public to 
 private, corporate or party interests. Without the aid of 
 modern means of communication and dissemination of in- 
 formation these difficulties, with the present heterogeneous 
 elements in our population, might be insurmountable. As 
 matters stand there is ample room for great improvements 
 in our methods of selecting officials and representatives of 
 the people. 
 
 The British Empire is constructed in accordance with far 
 more flexible theories, and can adapt its governmental ma- 
 chinery to the varied stages of social development from Afri- 
 can savages to the socialistic colony of New Zealand. It 
 rules in India as a military despotism and in Canada and 
 Australia allows full liberty of self-government. Only the 
 inhabitants of the British Islands are represented in the gen- 
 
GENERALIZATIONS 933 
 
 eral government of the empire, but the people of the colonies 
 make their own laws and conduct their home affairs with 
 practically no interference. Instead of extending the system 
 of representative government so as to include representatives 
 from remote parts of the empire, the tendency now is to al- 
 low what is called home rule to Ireland and thereby to further 
 divide legislative authority. But this is really in accord with 
 the American plan of allowing the people of each state to 
 make laws adapted to their needs and views. 
 
 The spread of representative government since the Ameri- 
 can Revolution has been very rapid. In the western hemi- 
 sphere practically all the governments are republics in form, 
 except the European dependencies. In Mexico and Central 
 America military force is still resorted to for the establish- 
 ment of political power at times, but it is to be hoped and 
 expected that stable governments based on free and fair elec- 
 tions and submission to the will of majorities will soon be 
 maintained as they now are in the Latin states of South 
 America. In Europe Switzerland and France are well estab- 
 lished republics, and Portugal has recently become one. In 
 Asia, Japan, Persia and Turkey are constitutional monarchies, 
 chu dynasty and become a republic. With this accession to 
 the ranks of the republics of the earth the aggregate popula- 
 tion of them jumps from about 200,000,000 to 600,000,000. 
 All the other European governments including Russia and 
 Turkey have representative legislative bodies and the mon- 
 arch's power is limited by constitution in all but Russia. In 
 Asia Japan, Persia and Turkey are constitutional monarchies. 
 It thus appears that the only great country, inhabited by civi- 
 lized people, in which popular representation in the govern- 
 ment is wholly denied is India, which is ruled as a dependency 
 by Great Britain. There is great diversity in the meaning 
 of the term limited monarchy as applied to the different gov- 
 ernments. In Great Britain the power of the king has been 
 reduced to a shadow and the hereditary house of lords to little 
 more than an advisory body, while in Germany the Emperor 
 is still the war lord with the weapons of a despot at his com- 
 mand. When it is considered that the doctrine that kings 
 
934 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ruled by right divine was firmly established and maintained 
 all over the world till the close of the eighteenth century the 
 progress of representative government appears very marked 
 and rapid. 
 
 Representative government does not imply that all govern- 
 mental functions are performed by men chosen directly by 
 the voters. In the United States the President is chosen 
 theoretically by an electoral college, but in fact by choice of 
 candidates made by party conventions and choice between 
 these candidates by vote of the people. The President as the 
 representative of all the people appoints all the heads of the 
 executive departments, all the diplomatic and consular rep- 
 resentatives of the nation, all the federal judges, and tens of 
 thousands of inferior executive officers. The more import- 
 ant of these appointments require confirmation by the senate, 
 and in practice most of the local officers in the states are se- 
 lected by the senators and representatives on whose recom- 
 mendation the president appoints them. Some of the chief 
 executive officers in turn appoint a great number of subordi- 
 nates in their departments. Under the constitution as it was 
 originally adopted the people did not choose the members of 
 the senate but the state legislatures elected them. An amend- 
 ment has recently been ratified by the states providing for 
 their election by direct vote of the people. The governors of 
 the states and the mayors of the great cities also appoint great 
 numbers of executive officers, some of whom require confir- 
 mation by the >fcaijb»senate or city council. All members of 
 the state legislatures, most of the state judges and nearly all 
 the county and township officers are elected by popular vote. 
 In the United States changes in the cabinet are dependent on 
 the pleasure of the President, while in France and Great 
 Britain they are dependent on the will of Parliament. While 
 there is some diversity of methods in the various republics, 
 political power is conferred in each of them in all the ways 
 above mentioned. 
 
 In the constitutional monarchies not only is the king or 
 emperor indebted to a law of inheritance for his office rather 
 than to the people, but there is an upper house of the parlia- 
 
GENERALIZATIONS 935 
 
 ment made up of hereditary nobles or royal appointees or 
 both who are not accountable to the people for their action nor 
 subject to removal by them. In some countries the hereditary 
 nobility exercise great influence in the election of members of 
 the lower house. The requirement of property qualifications 
 as a condition to the right to vote in some countries renders 
 the lower house a representative only of the privileged classes. 
 In all these countries however there is an unmistakable ten- 
 dency to restrict the exercise of arbitrary power and make 
 the military subordinate to and dependent upon the civil 
 power. 
 
 Ay Methods of and Principles Applicable to the Selec- 
 tion OF Public Officers 
 
 All governments however established or whatever their 
 forms or functions are mere expedients, without moral at- 
 tributes, and doomed to successive changes in methods of 
 conferring power, in functions, and in purposes. It does not 
 follow that any of these are matters of indifference, or that 
 the government is any the less a necessity. The men who 
 d irect the operations of government have moral attributes and 
 it is of the utmost consequence that those best qualified fo r 
 t he discharge of the required duties and most devoted to the 
 general welfare be chosen. Some general principles may be 
 declared jvith reference to the methods which tend to g-ood 
 and bad selections of officers. First, the selections should be 
 made by those whose sole purpose is to promote the general 
 welfare, i he purpose of the military despot in making his 
 choice of officers is to secure fidelity and efficiency in the 
 execution of his will. His own interests are the prime con- 
 sideration and may be the sole one. It is morally possible 
 that a despot may be wholly devoted to the welfare of his. 
 subjects, but it is hardly possible that the influences surround- 
 ing him will be of such character. The courtier is usually 
 actuated by selfish motives and his suggestions and recom- 
 mendations are ordinarily jnade to promote his own rather 
 than the public interests. [The same principles apply with 
 more or less force to all monarchical and oligarchical govern- 
 
936 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ments. The influences controlling all appointments are spe- 
 cial and personal rather than general and public. Where the 
 selections are made by the whole body of persons whom the 
 officer is to serve the general motive must be public and to 
 promote the welfare of all. Theoretically the desirable mo- 
 tive dominates in popular elections. It often happens that a 
 small but influential number of persons succeed in dictating 
 the nomination and procuring the election of officers who are 
 devoted to their personal interests or favorable to schemes 
 for the advancement of special interests. Ambitious candi- 
 dates, though lacking in moral purposes and qualifications for 
 the offices to which thev aspire, may yet be experts in the art 
 of getting votes and succeed in defeating opposing candidat es 
 who are far more worthy . Under all popular governments 
 there is a constant tendency for the people to divide into 
 political parties, the members of which act in concert to se- 
 cure the election of the candidates of their choice. Like most 
 other expedients employed by a free people in their public 
 affairs party organizations have their good and bad influ- 
 ences. They ordinarily secure ample criticism of the official 
 conduct of officers of the opposing party, and sometimes are 
 quite efficient in bringing to public attention candidates well 
 qualified for the positions to be filled. They also are capable 
 of exerting good influences on the officials while in office. 
 On the other hand there is a marked tendency for political 
 parties to fall under the domination of leaders whose main 
 purpose is personal and party advantage, and who resort to 
 immoral means to accomplish results. It is well to have the 
 opposing sides of all public questions discussed and to have 
 the merits and demerits of candidates made known, but it 
 sometimes happens that the purpose is to deceive and mis- 
 lead rather than to correctly inform the public. The evils 
 incident to popular choice are however temporary and such 
 as are incident to human weakness and imperfection. The 
 underlying and continuing motive must still be good. 
 
 [Second, selections of representatives and officers shoul d 
 be made by those having sufficient acquaintance with or in - 
 formation ^g:^^cerning the candidates to enable them to judge 
 
GENERALIZATIONS 937 
 
 f airly of their qualifications.^ It is apparent that the members 
 of a tribe or a small community may know all the prominent 
 men in it and express an intelligent choice for leaders. This 
 accounts for the wide prevalence of democracy in the primary 
 political organizations of so many countries. When the 
 choice is made for larger districts personal acquaintance with 
 the candidates become less general, and the voters must rely 
 on information derived from others. When the selection is 
 for a large province a great state or a whole nation most of 
 the people must rely wholly on such information. Ample 
 means of intercommunication between the people of all parts 
 of the territory affected then becomes indispensable. The 
 growth of representative government has been contemporane- 
 ous with and dependent on modern inventions and improve- 
 ments in means of spreading information and interchanging 
 views. The printing press, postal service, railroad, telegraph 
 and telephone, have done much to eliminate the difficulties 
 interposed by distance. Instant communication with all the 
 centers of civilization throughout the world is now not only 
 possible but common. \The practical difficulties in the way of 
 affording full and correct information as to the character 
 and qualifications of men and the merits of public measures 
 among the multitudes in great states are still very serious 
 obstacles to be overcome. A considerable part of such in- 
 formation as is in fact scattered among the people mainly 
 emanates from those having special interests to subserve as 
 candidates or otherwise. This may be colored with falsehood. 
 A far more serious practical difficulty of similar nature li es 
 in the want of time, opportunity and capacity of the average 
 ci tizen to fairly consider and decide upon the merits of a 
 gr eat number of opposing^ candidates for many different of - 
 fices. When it is considered that each American citizen is 
 in some measure responsible for the selection of hundreds of 
 thousands of officers high and low the physical necessity for 
 selection and appointment through representatives is appar- 
 ent. All the people could not possibly take part in the direct 
 choice of all the officers. Representative government implies 
 not only popular selection of the legislative bodies, but also 
 
938 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 of the appointing pov^r that fills the executive offices. Schemes 
 jiave often been adopted under which a body of men chosen 
 by the p eople chooses an other body which makes t he ultimate 
 choice of the persons wEo are to pertorni the offi c ial dutie sr 
 This was the method of electing United States senators, who 
 wielded so much power and influence in the selection of judi- 
 cial and executive officers. The people elected the members 
 of the legislatures, who then elected the senators who named 
 the appointive officers. This system has been found open to 
 two most serious objections; it interferes seriously with the 
 legislative work, and gives an opportunity for those who seek 
 special privileges and advantages to exert undue and often 
 corrupt influences in the selection of the senators. Since this 
 provision of the constitution has been changed all legislative 
 officers in the United States are chosen lly direct vote of the 
 electors. There is a rapidly growing feeling that federal 
 judicial officers should be chosen directly by the people, in 
 place of being appointed for life as now. There has also been 
 a tendency to add to the list of executive officers on the bal- 
 lots at the popular elections, but the impossibility of making 
 an intelligent choice between so many candidates who are 
 strangers to most of the voters is apparent and becoming 
 recognized. Selection of those who fill minor executive of- 
 fices by their superiors who are directly chosen by and ac- 
 countable to the people seems to produce the best results. 
 
 Third, those who make the choice of persons to fill publi c 
 offices should have a general understanding of the nature of 
 the duties to be performed and be in a position to iudge~o L 
 ,the quahncations ot the candidates^ It is still necessary^ 
 however, that the leading motive actuating those who mak e 
 the choice should be to promote the public welfare. Tiio. se 
 speciallv skilled in a science, profession or business are ge n- 
 erally better qualified to select officers whose duties relate 
 thereto than the general public. ^J^j^jthgv are lia ble to have 
 personal or class interests to promote. Lawyers are bette r 
 q ualified to sgjegt judges than laymen, and physicians and 
 surgeons health officers, but the interests of the profession 
 might not always coincide entirely with those of the public. 
 
GENERALIZATIONS 939 
 
 Th e principle of expert selection of experts is, however, quite 
 too generally neglected. 
 
 4. Direct Legislation. Initiative and Referendum 
 
 Though the initiative and referendum are generally looked 
 on as new they are mere extensions of the familiar method of 
 establishing popular governments. The constitutions of the 
 American states have been mostly formulated by conventions 
 and submitted to the people for adoption. Amendments to 
 these fundamental laws in great numbers have been submitted 
 to the vote of the people and adopted or rejected. The sub- 
 jects dealt with have included not merely the framework of 
 the government but many rules of substantive law. The prin- 
 cipal new feature is in the initiative through which a law 
 formulated by any citizen may be submitted to the voters for 
 adoption on the petition of the required number pi voters. 
 Formulation of laws by persons who are not members of any 
 legislative body is not at all uncommon, and many of the 
 most carefully prepared acts are so prepared and afterward 
 enacted into laws.. The referendum is merely the submission 
 of a law to the approval of the people as constitutions and 
 amendments thereto are submitted. 
 
 5. Changes in the Forms and Functions of Governments 
 
 As we have seen there is a world-wide drift toward popular 
 representation in government and away from the doctrine of 
 the divine right of kings to rule. As popular influences gain 
 ascendency it wot^d Veem natural that military tendencies 
 "which have been such prolific breeders of despotisms should 
 diminish. Nevertheless at no period in the history of the 
 world was there anything to compare with the modern mili- 
 tary and naval establishments of Europe or the expenditure 
 of money in maintaining them. Modern inventions in the 
 manufacture of explosives, guns, steel and other metals, ship- 
 building and the "many costly structures and instruments of 
 destruction and defense, seem to have caused the nations to 
 run mad in a race of military organizations. 
 
 The claim had been that all this preparation was merely 
 
940 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 for purposes of defense but a situation of complete prepara- 
 tion for a conflict fias borne its natural, perhaps inevitable, 
 fruit, the most gigantic war the world has ever known. The 
 leading nations of Europe have for many years borne a most 
 excessive burden of taxation for military and naval expendi- 
 tures and the people who have borne these burdens are now 
 being slaughtered in great numbers as a result of them. The 
 perfection of Germany's army neither preserves the lives of 
 its soldiers nor protects their families from the suffering that 
 war entails. Great Britain's vast navy preserves its dominion 
 over the sea to a limited degree but at the expense of the 
 lives of many of its sailors and marines. Air ships and sub- 
 marines introduce new elements in warfare and have served 
 to add to its savagery. Rules for the protection of non- 
 combatants which had been observed in recent wars are now 
 disregarded because deemed impracticable where war is 
 waged from the air and beneath the sea. 
 
 Notwithstanding this dreadful relapse into ancient sav- 
 agery aided by so many modern inventions, the demand for 
 some general organization of the nations of the world which 
 will not merely prevent the recurrence of such conflict but 
 which will relieve the people of all the nations from the bur- 
 dens of great military and naval establishments is more wide- 
 spread, general and persistent than at any time before in the 
 history of the world. The danger of placing the power to set 
 all Europe ablaze with war in the hands of a single ruler is 
 apparent to all observers. Thousands of men are now earn- 
 estly seeking for some practicable plan which will secure the 
 multitude against the mad ambitions, crimes and follies of 
 crowned heads and military leaders. 
 
 In times past differences in race, language, religion and 
 customs have interposed serious obstacles in the way of good 
 understandings between nations. These obstacles are being- 
 measurably removed by intercommunication and education, 
 but on the other hand modern facilities for travel and com- 
 munication bring the people of each country in contact with 
 the people of all the others in greater or less degree. The 
 most military nations are those that come most in contact 
 
GENERALIZATIONS 941 
 
 with the others. In the dark ages China, Japan and India 
 were completely isolated from the Europeans. Now the fleets 
 of all nations sail into their ports, and railways connect them 
 by land. England, France, Germany, Italy and Russia are 
 reaching out for distant possessions, while Spain and Turkey 
 have been forced to give up much of theirs. The savage 
 tribes of Africa are being subdued by Europeans who covet 
 their lands and products. All the earliest seats of civilization 
 in Egypt, India, China and Babylonia are either already dom- 
 inated or threatened by these aggressive nations. Military 
 force is still employed for the extension of power, as it was 
 in the days of Ramses, Darius, Alexander and Caesar. Sav- 
 ages are subdued by it, a relatively easy matter, and vast 
 preparations of armies and navies are made to ward off and 
 overawe other covetous military nations. Even the United 
 States unfortunately took from Spain a claim of sovereignty 
 over the Philippine Islands and pays the heavy penalty for it 
 of increased militarism and $200,000,000 a year in added 
 war and naval expenditures. A few centuries ago the wars of 
 European nations were mostly due to claims of their rulers 
 to sovereignty over neighboring territory, and with immedi- 
 ate neighbors. Now the conflicts are largely over distant 
 possessions. Very modern examples of this are in the wars 
 of Russia with Japan over claims of dominion and privilege 
 in northeastern Asia, and between Italy and Turkey over a 
 part of northern Africa. The material as well as the moral 
 advantages of a general agreement among all the aggressive 
 nations to police the countries inhabited by savages and pro- 
 tect the people of all nations who see fit to go there for law- 
 ful purposes, have not yet overcome inherited military ten- 
 dencies, national selfishness and the jealousies of the great 
 powers. In theory the submission of this whole matter to a 
 parliament of all the nations is simple, yet practical obstacles 
 still prevent it. By war and the maintenance of armies and 
 navies the interests and ambitions of a few are served, but 
 the multitude always suffer from them. Militarism and de- 
 spotism go hand in hand and are of course antagonistic to 
 the welfare of the public. The guilt of provoking war us- 
 
942 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 ually lies in some ruler or leaders. The great multitudes pay 
 the penalties of their crimes and often enrich and glorify 
 them for the misery they have inflicted. With the advancing 
 enlightenment of the masses throughout the world these 
 truths are gaining recognition and aggressive warfare is con-^ 
 demned, yet it is not common to fix criminal responsibility on 
 the men who dictate national policies. The central idea of the 
 union of the American states is applicable to a world wide 
 union of the nations. Such a union calls merely for the super- 
 imposition over all nations of an agency made up of repre- 
 sentatives of each for the promotion of the welfare of all, 
 leaving the regulation of the internal affairs of each country 
 to the home government of it. It implies, however, the ac- 
 ceptance by all nations of the representative principle and of 
 the equality before the law of the people of all races and 
 countries. It must be attended by such general education of 
 the masses and intercommunication among them as are es- 
 sential to a world-wide understanding of the principles of 
 the union. The guarantee to the citizens of each state of all 
 the privileges and immunities of all the other states is of 
 prime importance in America, and would be so in a world 
 union. North and South America are republican throughout 
 and though Mexico' and Central America still have military 
 disorders they have accepted the principle of self-government. 
 With the aid of a general union all their difficulties would 
 doubtless be relieved. For a long time similar conditions ex- 
 isted in the South American states but they have substantially 
 disappeared. The United States had its frightful civil war, 
 but the principle of local self-government and of equality of 
 rights among all the people was not impaired. The people 
 of France and Switzerland are educated for such a union, 
 and all the British, German, Scandinavian, lowland and re- 
 lated people, though retaining monarchical forms of govern- 
 ment, are quite well prepared to enter into and maintain a 
 general union. Not only these but the pacific races of China 
 and India and the Japanese are amply qualified to join the 
 great federation. The European states where religious dom- 
 ination still combines with military in government and the 
 
GENERALIZATIONS 943 
 
 Mohammedans might be found more intractable than others, 
 though they cannot be said to be more warhke. 
 
 A parHament of the world would of necessity be based on 
 the broadest toleration of local institutions, laws, beliefs and 
 personal views in all non-essentials. It could only stand on 
 an accepted theory of justice to and equality of legal right 
 in all. All national robbery by military force would neces- 
 sarily be condemned. It is not essential to the successful 
 maintenance of such a union that the people of all countries 
 should regulate their domestic affairs in the same manner. 
 It is only necessary that they should be substantially agreed 
 as to the principles governing international relations and in 
 the sterilization of the military functions of government. 
 Increased intercomrrmnication, interchange qf literature, 
 trade, common enterprises, common language and common 
 purposes tend to sympathy and good understanding. That 
 all these influences are actively at work and are breaking down 
 the barriers which have so long caused fear and suspicion 
 where confidence and good will ought to prevail is manifest. 
 Whenever the sublime ideal of universal brotherhood and 
 mutual help among all people prevails there will be little diffi- 
 culty in effecting a general union. 
 
 Among the Greeks and Romans law-making, military, train- 
 ing, religion and the administration of justice were the public 
 matters receiving most attention. At Sparta the young were 
 educated by the state. Education of the boys meant military 
 training and of the girls physical development; all primarily 
 for the purpose of giving strength, courage, endurance and 
 efficiency in war. In all the Greek and Roman cities religious 
 observances were matters of state concern, and Rome has its 
 pontifex maximns and its college of pontifices. Popular in- 
 stitutions necessarily imply public instruction in matters of 
 public concern and the Greeks and Romans disseminated 
 knowledge of military affairs, religious observances and the 
 principles of their governments and laws, through the dis- 
 cussions in their assemblies, writings open to public inspection 
 and in many other ways. Instruction in language, mathe- 
 matics, philosophy, science and art was given mainly in pri- 
 
944 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 vate schools. In Asiatic and European despotisms legislation 
 was merely an assertion of the will of the monarch, while 
 custom afforded most of the rules governing the conduct of 
 people in their private affairs. Military organization was the 
 basis of the feudal system and continued to be the basis of the 
 monarchical system which ensued, but both were closely al- 
 lied with the great religious organization of which the Pope 
 was the head, except as conflicting interests and ambitions 
 caused dissensions. The functions of the kingly govern- 
 ments included military organization, collection and disburse- 
 ment of the revenue, administration of the law, and the 
 display, intrigue, amusements and debaucheries of the courts. 
 Modern governments have added many new functions. 
 I. The first and by far the most important of these is the 
 dissemination of knowledge. Free schools maintained at public 
 expense, affording instruction to all in all branches of learn- 
 ing from the primary to the university, and technical schools 
 are now maintained by all the leading nations. At first the 
 Greek and Roman languages and literature and theology filled 
 a large part of the curriculum, but now there is a marked 
 tendency to treat these as of minor concern and to give prom- 
 inence to the sciences, to all knowledge that gives man mas- 
 tery over the material world. Among the newly developed 
 or greatly enlarged functions of government are : 
 
 I. Education which is no longer mere polish, but equipment 
 with power and efficiency in all undertakings. The old theory 
 that gentility is measured by elegant worthlessness and indo- 
 lence, and that distinction must be based on war's savagery is 
 being discarded and men are measured by the more just stand- 
 ard of the services they render to others. The great man now 
 is he who does, invents, plans or (directs something that con- 
 tributes to the welfare — not the- desiruction — of the multitude. 
 Young men are still trained and educated for war in great 
 schools maintained by the nations as well as in military 
 camps, but much of the instruction given in the military and 
 naval academies is just as valuable preparation for civil as for 
 military duties. These schools are relatively few in number 
 when compared with the general systems of common schools 
 
GENERALIZATIONS 945 
 
 where all the children are taught the fundamentals. In the 
 United States the expenditures of moneys raised by taxation 
 for the maintenance of public schools are far in excess of 
 those for any other public purpose and now exceed those for 
 the current expenses of both the army and navy by $150,- 
 000,000 a year. The European countries do not yet make 
 so good a showing. 
 
 2. The post office conducted by the governments is essen- 
 tially a newly developed function. Each established and well 
 organized government in the world receives transmits and 
 delivers letters, printed matter of all kinds and small pack- 
 ages not only for all its own people but also to and from all 
 the people of all other civilized countries. All the nations 
 join in the international postal union, and though the vast 
 significance of it is seldom discussed, the world already has 
 one general governmental agency performing a strictly useful 
 and peaceful function. Next to the educational function this 
 is far the most useful and valuable one performed by the 
 governments, yet it is carried on with the maximum of ef- 
 ficiency at minimum cost for the service and with little or no 
 expense to the taxpayers. 
 
 3. The telegraph and telephone, services which in the Uni- 
 ted States are conducted by corporations are operated in 
 Europe largely by the governments in connection with the 
 postal service. While they are of great and growing import- 
 ance the expenditures connected with them are relatively 
 small. 
 
 4. Construction and maintenance of roads by the govern- 
 ment is not new. The Romans and ancient Peruvians were 
 great road builders and all civilized governments devote more 
 or less attention to their highways. Some of these old roads 
 were as well constructed as any modern ones constructed for 
 similar use, but railroads have introduced an entirely new 
 system of transporting persons and property. In some coun- 
 tries these are constructed and operated by the government, 
 while in others they are owned and operated by private cor- 
 porations under more or less governmental supervision. The 
 construction of highways open to the use of the general pub- 
 
946 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 lie has always been regarded as a proper function of the gov- 
 ernment, but the traffic carried on over them was in private 
 hands. As a railroad from its nature calls for unity of man- 
 agement, the transportation of persons and property over it 
 must either be assumed by the government or left to some 
 private or corporate organization. Highways of all kinds are 
 required for the postal service and a railroad operated by 
 the government merely rounds out the service given through 
 the highways and post office by adding the operation of trains 
 over the road for the transportation of packages of all sizes 
 and kinds and also of passengers. To what point the func- 
 tions of governments will be extended along this line the 
 future will answer. The railroad is necessarily more or less 
 a monopoly, but is dependent on the intercourse and commer- 
 cial transactions of people dwelling at a distance from each 
 other for its support. Neither state nor national boundaries 
 indicate natural termini for it or Hmitations of its usefulness. 
 It becomes in time a firm bond of union between the people 
 who use it. In spite of governmental hostility it steadily 
 teaches unity of interest, mutual confidence and brotherly as- 
 sistance, regardless of race or nationality. 
 
 5. Improvement and care of the waterways, rivers, har- 
 bors, lakes and seas, construction of canals, dikes, aqueducts, 
 breakwaters, lighthouses, docks and other aids to traffic by 
 water, while not new are greatly enlarged functions of the 
 government. The ancient Babylonian, Egyptian and Chinese 
 governments constructed canals in aid of agriculture and 
 commerce and gave much attention to the promotion of these 
 industries. The superiority of their civilization was due to 
 their peaceful activities. The changes in modern activities 
 along these lines is due mainly to the use of steam as a mo- 
 tive power. The construction of railroads tends to diminish 
 the need for canals as waterways, and steam pumps raise 
 water for purposes of irrigation. Steamboats have brought 
 all countries bordering on the seas into safe and easy com- 
 munication with each other, where all the proper safeguards 
 and conveniences are supplied along the coast. Such vast 
 undertakings as the Suez and Panama canals are carried to 
 
GENERALIZATIONS 947 
 
 completion quickly and without placing an appreciable burden 
 on the people of a nation of ninety million people. While 
 great sums are still expended on fortifications to guard 
 against hostile squadrons, vastly greater sums are expended 
 on improvements designed to open and make safe the entry 
 of friendly ships and people from every quarter of the globe. 
 While other nations have not passed from a policy of rigid 
 exclusion of all foreigners to one of most active intercourse 
 like Japan, the trend in all nations is to extend a welcome to 
 all as friends, and to use the powers of government to pro- 
 mote friendly intercourse with, rather than for the destruction 
 or robbery of them. 
 
 6. Care for the unfortunate is now recognized as a duty of 
 the organized public. Asylums and hospitals of all kinds are 
 maintained for the care of the insane, diseased, imbecile and 
 indigent. It is recognized as a duty of the state to take care 
 of all who cannot care for themselves and have no kindred 
 on whom they rightfully depend. These humane functions, 
 which now call for large expenditures, are distinctly modern 
 and are a public acceptance of one of the obligations of uni- 
 versal brotherhood. To these may be added the care for those 
 who sail the seas, lakes and rivers, through life-saving crews 
 and appliances, lights, buoys and forecasts of the weather. In 
 harmony with the recognition of these duties toward the un- 
 fortunate has come a change in the attitude of the public 
 toward the criminals. There is a well defined drift away, 
 not merely from arbitrary and unjust executions and punish- 
 ments, but from all vindictive punishments. It is seen by 
 criminologists that tne criminal is still a human being, entitled 
 to the aid of the state in becoming a useful member of society, 
 instead of an enemy to it. It is also perceived that society is 
 measurably responsible for conditions that stimulate crime. 
 It is now regarded as a proper function of the state to under- 
 take the reformation of not only juvenile but adult criminals. 
 
 The divorce of church and state now so complete in the 
 United States and some other countries is a most important 
 and clear cut change in the functions and theory of govern- 
 ment. The growing tendency in all the leading nations to 
 
948 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 deny all divine commission to govern, to withhold from the 
 church all support by taxation and all aid in procuring the 
 observance of religious forms is very marked. When govern- 
 ments are established and maintained by the people for their 
 own purposes both military methods and religious sanctions 
 are unnecessary. The secular power no longer requires the 
 prop of the church to maintain arbitrary assumptions of au- 
 thority, and no longer vouches for the truth of its doctrines, 
 or compels the people to furnish it revenue. This divorce- 
 ment is of profound importance in its moral influence. False 
 claims of divine right to rule are no longer bolstered up by 
 the teachings of the clergy, but the secular officers must look 
 to the people for their authority and justify their conduct to 
 them. They may and often do deceive the people as to their 
 motives and the merits of their policies, but the very truth 
 of the matter is open to inquiry and all the churches are free 
 to act as public censors. On the other side the truth of the 
 claims of the clergy that they are commissioned to speak for 
 the divinity is no longer vouched for by the secular power 
 but is for them to establish. Out of the darkness appears 
 truth as the divine light and the only safe guide to be fol- 
 lowed. The truth is, falsehood is not. The truth bears every 
 test, falsehood may bear some but not all. No matter what 
 the line of human inquiry, he who can follow the lines of 
 truth knows that he gains strength step by step and that he 
 gathers imperishable fruit as he goes. The words of kings 
 and priests and the books they have written may be true, but 
 they may also be mixed with and colored by falsehood. To 
 proceed safely in scientific investigation there must be either 
 mathematical demonstration or such multiplicity of tests as 
 excludes the chances of error. All the people searching freely 
 and eagerly for the true rules affecting their common welfare 
 and true relations to each other can discover more of them 
 than any select few. 
 
 It is clear that whatever changes in governmental forms 
 and functions tend to eliminate the destructive and wasteful 
 agencies and substitute productive and economical ones are 
 desirable. It is clear that the elimination of hatred and mal- 
 
 \ 
 
GEN ERALIZ ATION S 949 
 
 ice from the impulses which actuate the governing force is 
 devoutly to be wished, and the propagation of universal kind- 
 ness and good will stimulated in all ways. The field of pos- 
 sible improvement appears limitless, but we have entered on 
 and are traveling over it at steadily accelerating speed. Many 
 people are alarmed at the tendency to rapid changes in all 
 popular governments. This is due to the experimental char- 
 acter of all governments, the infinite possibilities of improve- 
 ments in them, rapid changes in internal and external condi- 
 tions, and the application to public affairs of so many more 
 minds actuated by diverse impulses and suggestions. It needs 
 but a few of the many pages of history to show how great 
 harm nations can do each other in bloody warfare. It is now 
 equally apparent that no matter how near to or remote from 
 each other they may be, all may profit from mutual aid. The 
 possibilities of achievements through combined efforts to pro- 
 mote the general welfare appear limitless. Compared with 
 them the building of a Panama canal is but as a holiday di- 
 version for the amusement of the world. 
 
 LAWS 
 
 Methods of Originating Laws 
 
 The leading methods of originating laws may l)e placed in 
 eight classes: First, and most universal is custom through 
 which laws arise from the activities and environments of the 
 people and come to be observed as rules of conduct without 
 formal agreement or promulgation by any body. Second, 
 Parental authority, exercised first over the immediate family 
 and then extended to posterity and over enlarged families. 
 Third, Military power, through which a despotic ruler con- 
 verts his will into law. Fourth, Oligarchic decrees promul- 
 gated by a dominant few. Fifth, Religious leaders acting 
 singly like Mohammed, or in combination like Moses and 
 Aaron, or in representative bodies, and claiming divine sanc- 
 tion for their rules of conduct. Sixth, Representative bodies 
 authorized to speak for the state and enact laws. Seventh, 
 
950 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 Direct action of the people in a general assembly of the mass, 
 or by vote on a proposition submitted to them. Eighth, De- 
 cisions of courts and doctors of the law who are authorized to 
 interpret the written law and called on to find a rule of de- 
 cision where there is no written one. 
 
 The spirit of the law accords with the spirit of the maker 
 of it, and the purpose to be accomplished by it is his, not that 
 of those on whom it operates. 
 
 Laws come into existence through a combination of two 
 or more of these methods and in all the leading nations of 
 the world there are survivals of laws which owe their origin 
 to each of them. 
 
 Purposes of Laws and Motives Prompting Their 
 Enactment 
 
 I. Punishment. 
 
 The laws prescribing punishments have many aspects. The 
 importance of them is very greatly overestimated by most 
 people, though by no means inconsiderable. The sum total 
 of wrongs inflicted through violations of the criminal law 
 is very small in comparison with the sum total of wrongs in- 
 flicted in the name of law and with its sanction. This affords 
 the anarchist his basis of reasoning, but does not justify his 
 conclusions. Experience everywhere demonstrates the neces- 
 sity for a public force to restrain those who will not volun- 
 tarily refrain from injuring others. To leave the injured 
 party to right his own .wrongs in his own way leads to a 
 succession of reprisals and enduring feuds. The theory of 
 our criminal law is that crime consists of acts detrimental to 
 the public welfare and that all such are public offenses. There 
 is, however, in the nature of things a well marked difference 
 between those offenses that are merely against the state or its 
 rulers and those that harm private citizens only. 
 
 Purely public offenses grade all the way from treason 
 manifested in open warfare agains those rightfully entrusted 
 with the powers of government to mere failure to contribute 
 revenue or comply with a rule of public order. Treason is 
 almost invariably an outgrowth of a condition of social dis- 
 
GENERALIZATIONS 95i 
 
 order, and the purpose of the perpetrators of it is usually to 
 overcome the power of the men in authority, rather than to 
 harm the general public. It is common in despotisms which 
 fall into weak hands, and is usually punished arbitrarily in 
 accordance with the will of the despot. Those condemned as 
 traitors are usually merely the prominent men whose power 
 and influence the despot fears. Executions may be military 
 as in the recent lamentable instances in Mexico or under 
 judgments of courts organized to kill like those employed by 
 Henry VIII of England. They are mere manifestations of 
 savagery in different forms. In well ordered states where 
 the government is one of which the people approve treason 
 is rare. It may, however, assume the form of civil war as 
 that of 1 86 1 to 1865 in the United States in which millions 
 participated in the crime. While the law might have been 
 invoked to slaughter more victims after the struggle ended, 
 the manifold advantages ensuing from the restoration of all 
 to friendly relations are perfectly obvious. The despot sel- 
 dom feels safe in acting on this principle. Most of the other 
 offenses which are strictly public in their nature are connected 
 with the army, navy, revenue, currency or public records. 
 Many of the offenses relating to the pubHc revenue have no 
 moral turpitude except in the refusal to be bound by the law. 
 In and of itself there is nothing morally wrong in bringing 
 food or merchandise of any kind into one country from an- 
 other. The evasion of an excise or other tax in order to 
 supply one's family with the necessaries of life evidences no 
 moral turpitude. There is, however, connected with all these 
 offenses a disregard of established laws deemed necessary for 
 the general welfare. 
 
 Of offenses against private persons which affect the gen- 
 eral public only by the shock to the feelings of others and 
 their sense of security, there is the full list of wrongs which 
 one may do to the person or property of another of such crude 
 and obvious viciousness that all recognize the immorality of 
 the acts. For such acts the laws of modern states no longer 
 take eye for eye and tooth for tooth, but many of them still 
 do take life for life. For most wrongs a fixed quantity of 
 
952 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 suffering is measured out for a given offense. More humane 
 views concerning punishments are now spreading, and it is 
 perceived that the criminal is still a human being entitled to 
 help and sympathy. The offenses violative of property rights, 
 though still given much consideration, are quite inconsequen- 
 tial in their general effects in every orderly state. The sum 
 total of value of all property which changes hands as a result 
 of theft, robbery, embezzlement, forgery and all other crimes 
 of similar character is relatively insignificant, and it is rare 
 that great suffering results from it. Arson committed out of 
 malice toward another or to defraud an insurer is by far 
 the most prevalent and disastrous of all. 
 
 Let us measure against these and the other wrongs commit- 
 ted against the law and to the harm of others the wrongs 
 which are committed with the aid of the law. By means of 
 the law the government forces its citizens to leave their pri- 
 vate callings, their homes and families and enter its service 
 in the army or navy. It declares war against its neighboring 
 nation and sends these men out to kill and be killed, wound 
 and be wounded, destroy property and spread desolation over 
 the land and throughout the homes. It takes the property of 
 its own citizens and uses it to destroy the lives and property 
 of the citizens of other countries. It murders the murderer 
 and confines felons in dungeons where human hatred comes 
 but human sympathy is wanting. It gives absolute dominion 
 over the land to a part of the people and casts sick and 
 starving tenants into the streets at the landlord's demand and 
 recognizes his right to be harsh and cruel in the assertion of 
 his dominion over the face of the earth. It takes food from 
 the mouths of the poor and clothing from their backs through 
 the taxation on the articles consumed. It lends its aid in 
 multiform ways to aid the crafty and the lucky in gathering 
 incomes from those for whom they have rendered no service, 
 to be squandered in vain show and debauchery. The hard and 
 merciless creditor is the favorite of the law. Every advan- 
 tage that the crafty man can gain in accordance with the 
 the law, is carried to fruition by the law. It is the law that 
 
GENERALIZATIONS 953 
 
 makes and fortifies all privilege and continuing injustice. 
 How vastly more is secured to the favored few the world over 
 through the unjust use of the law than all that is taken by 
 all the crimes against the law. Manifestly the best field of 
 labor for all who seek the elimination of crime is in taking 
 away the temptation and incentive to crime by doing away 
 with the injustice which the law now sanctions. Poor men 
 are no longer hanged for killing wild game and thereby in- r 
 terfering with the savage sport of the idle gentry because en- 
 lightened sentiment has caused the repeal of the laws that 
 required it to be done. Boys are no longer hanged for steal- 
 ing a shilling, but monstrous injustice still uses the law. 
 
 In primitive societies where the people are poor and sub- 
 stantially equal, offenses are few in number and punishments 
 mainly limited to death, bodily maiming, chastisement or 
 fines. Despots add a list of offenses relating to their personal 
 security and power. In theocracies and governments combin- 
 ing a religious establishment with the civil power offenses 
 against religion and the church are sometimes greatly multi- 
 plied. Fictitious crimes like heresy and witchcraft have been I 
 visited with frightful torture and death. The more complex j 
 the organization of society the greater the number of statu- 
 tory offenses. In the United States Congress and the state 
 legislatures go on defining new offenses year by year as evils 
 incident to changing conditions and relations of the members 
 of society are brought to their attention. This multiplication 
 of statutory crimes has a marked tendency to induce disre- 
 gard of the law and laxity in the efforts of the officers to 
 enforce it. 
 
 The lists of crimes against which penalties have been de- 
 nounced and the severity of the punishments inflicted have 
 been so varied at different periods of the world's history and 
 in the different countries that it is difficult to trace anything 
 approximating a steady evolution along either line. Punish- 
 ments among the ancient Egyptians are said to have been 
 generally mild, while at Babylon the barbarity of the lex 
 talionis prevailed. China and India have exhibited mildness 
 
954 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and barbarity according to the character of those in power at 
 the time. In Europe as well as in America there now seems 
 to be a well marked tendency to mitigate punishments. The 
 most advanced illustrations of this tendency are in the treat- 
 ment of juvenile offenders, who are now placed in schools 
 for instruction and reformation rather than punishment, in 
 indeterminate sentences holding out an inducement to earn 
 liberty by good conduct, in the parole of prisoners to give 
 them a chance to demonstrate their ability to abide by the 
 laws, in improved sanitary and moral conditions in prisons, 
 and yet more important than all these in a growing tendency 
 to search out the causes of crime and charge society itself 
 with the conditions which induce the commission of it. In 
 many states the death penalty is no longer inflicted. The 
 state no longer compels an officer to take a life that cannot be 
 restored. With ample wealth to provide places for confine- 
 ment and restraint of those who lose either their reason or 
 moral self-mastery the apparent necessity for swift vengeance 
 disappears. It is dawning on us that the offenses committed 
 by those we have so long looked on as without the pale of 
 human sympathy are but the natural offspring of the wrongs 
 inflicted by the dominant forces in society on its weaker mem- 
 bers. The lord who excludes the would be tiller of the soil 
 from his game preserve to starve is the criminal rather than 
 the poacher whom in former times he caused to be hanged. 
 The same principle applies to a long list of modern condi- 
 tions exhibiting all grades of inhumanity on the part of the 
 dominant members of society. 
 
 2. Taxation 
 
 The justification both in morals and in public expediency 
 for taxation is that funds are needed to promote the general 
 welfare. In fact however the taxing power is and always 
 has been invoked largely for the purpose of favoring the few 
 at the expense of the many. In the crude simple despotisms 
 It takes the form of robbery, the despot merely taking what 
 he wants by force. A step in advance is a levy of tribute on 
 conquered people for the use of the conqueror and his fol- 
 
GENERALIZATIONS 955 
 
 lowers. In more advanced states the purposes multiply, but 
 always with a large element of personal or class favoritism 
 both in the distribution of the proceeds and apportionment of 
 the burden. The typical despot squanders his revenues on 
 dissolute courtiers and pomp and display about his court. 
 Taxation with him is sheer robbery of the industrious people 
 to support the vices of the favorites. Tithes, offerings and 
 other church exactions are similar in character and similarly 
 used where the priesthood rule. The Romans became expert 
 tax-gatherers, and the republic was doomed when the tribute 
 from the provinces produced a dominant dissolute class and 
 paid legions to back the claim of military aspirants for power. 
 Modern nations are able to and do collect far larger amounts 
 of annual revenue than the ancients could because of the 
 greatly increased returns from productive industries and the 
 far greater volume of money and substitutes for it in circu- 
 lation. The progress made in the art of tax-gathering is 
 mainly along the lines of inventing methods of indirect tax^ 
 ation through which burdens are concealed from the tax- 
 payers. Such methods are successfully employed in the forms 
 of excise taxes on beer, wine, liquors, tobacco and other arti- 
 cles of domestic production, which are paid in the first in- 
 stance by the producers and by them added to the price 
 charged the dealers and consumers. Custom duties on im- 
 ported merchandise are similarly collected from the importers 
 who pass the taxes on to the consumers through added prices. 
 In time the people become accustomed to the high prices of 
 such commodities and pay them without general complaint. 
 Capitation, income, inheritance and direct property taxes are 
 open and understood. The amount of the payment being 
 known the tax-payer promptly complains of the burden unless 
 convinced of the necessity for it, but where it is concealed in 
 the price of articles of consumption he ordinarily submits 
 without protest, and does not know and therefore cannot 
 show to what extent he has been wronged by his government. 
 The collection of such taxes is facilitated by the necessities of 
 the consumers on whom they ultimately fall, because they are 
 made an incident to the buyer's wants. He goes to the market 
 
956 ■ EVOLUTION OF GOVERNMENTS AND LAWS 
 
 to feed and clothe his family and furnish his home. The 
 taxes are added to the prices of his supplies. The funda- 
 mental principle of such taxes is vicious because it adds bur- 
 dens to want. It also has the further vicious effect of 
 obstructing the natural course of trade and thereby giving 
 artificial advantage to some to the detriment of the public. 
 Manifestly the more just method is to distribute the public 
 burdens according to strength and ability to bear them, to tax 
 income instead of outgo, wealth not want. Manifestly the 
 method best calculated to insure rigid scrutiny of public ex- 
 I penditures and curb waste and extravagance is to present 
 1 each^ taxpayer with a bill of the amount required of him. 
 
 In the United States the general rule is that the revenue 
 required for schools, roads, bridges and other state and local 
 purposes is raised by direct taxes levied on the property within 
 the district. While there is sometimes waste and extrava- 
 gance in these expenditures, the purposes are so universally 
 approved that the people cheerfully bear them. The revenue 
 of the general government however is mostly raised by the 
 indirect methods above mentioned. The expenditures are 
 such as might readily be foretold. Militarism takes the lion's 
 share. The army and navy, which the nation got along with- 
 out during its early period of weakness now call for more and 
 more as the need of them diminishes. As official positions 
 become ornamental rather than useful salaries are increased 
 and useless offices multiplied. Multiplication of offices and 
 extension of the functions of government follow a well 
 marked law of governmental growth. This is well or ill ac- 
 cording to the nature of the growth. 
 
 There is another method of raising revenue for public pur- 
 poses of fundamentally different character from either of 
 those above mentioned, namely by performing a business func- 
 tion from which an income is derived. The post office, public 
 railroads , telegraphs, telephones, canals, irrigation plants, 
 water-works, gas, electricity and like public service works are 
 illustrations of this sort. The officers and employees who 
 discharge these functions are, generally, what all public offi- 
 cers and employees should be, public servants returning a full 
 
GENERALIZATIONS 957 
 
 equivalent in service to the public for their salaries. Their 
 compensation, even though charged against the general treas- 
 ury, is in fact collected from those served and in proportion 
 to the benefit received by each. It may not be desirable, prac- 
 ticable or even possible to so distribute the functions of gov- 
 ernment that the officers discharging each function shall be 
 able to show by returns from it that they have earned their 
 salaries, but it certainly is v^ell to apply the test of utility to 
 each branch of the public service and v^eigh cost against 
 benefits. 
 
 In many countries the v^ealth of the privileged classes is 
 due mainly to the use of the taxing pov^er to extort revenue 
 from the industrious multitude. In all countries it is per- 
 mitted and protected by a government maintained by taxes 
 raised from the producers of v^ealth. The possibilities of con- 
 trolling the accumulation of unvv^holesome aggregations of 
 v^ealth and financial power by the apportionment of taxes and 
 the uses made of the revenue are not generally perceived ex- 
 cept by those who use the taxing power for their own ag- 
 grandisement, yet by this method alone almost any desirable 
 result is possible. "The power to tax is the power to destroy." 
 It may be used to destroy wholesale injustice as it has been 
 to build it up. In many countries there has been at times 
 wholesale confiscation of coveted accumulations of property, 
 but no system of distributing public burdens so as to steadily 
 and continually keep them bearing most heavily on those 
 whose rapacity ought to be restrained has ever been 
 maintained. 
 
 3. Personal Status 
 
 Laws fixing the personal status of individuals and classes 
 of people have played a most important part in the history of 
 the world. The primary simple division is into masters and 
 slaves of which all others are modifications. Prior to the 
 rise of feudalism in Europe slavery had been recognized by 
 the laws of every nation except where caste worked out the 
 same results. Human beings were property subject to pur- 
 chase, sale and the laws of inheritance. Moses and Moham- 
 
958 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 med both sanctioned slavery. In India the laws of caste made 
 masters of the twice-born classes and servants of the Sudras, 
 who however were not chattels subject to sale. The Greeks 
 and Romans enslaved prisoners of war and passed the status 
 on by sale and inheritance. Prior to the time of Justinian the 
 people of the Roman Empire were divided into four principal 
 classes : citizens, persons having Latin rights corresponding in 
 a general way locally to the rights of Roman citizens, freed- 
 men with more or less restricted liberty and slaves. The basis 
 of this division was quite different from that into the four 
 leading castes of India. In India it was based on religion, 
 education and occupation, while in the Roman Empire it was 
 based on a theory of property and political rights. The In- 
 dian system has proved the more enduring and difficult to 
 disrupt. Feudalism displaced the Roman system by intro- 
 ducing a new theory of mastery through title to land. The 
 owner of the soil by dictating the terms on which his tenants 
 might live on the land could obtain all the fruits of mastery. 
 More modern serfdom in Russia operated similarly. The 
 capture by Europeans of ignorant African savages and impor- 
 tation of them into America caused the establishment of slavery 
 in America long after its disappearance from Europe. It 
 proved as terrible a scourge to the white masters in the 
 United States as the enslavement of the Israelites did to the 
 Egyptians. There is now a well defined concensus of opin- 
 ion the world over that slavery is immoral and detrimental to 
 the public welfare. Chattel slavery is therefore rapidly dis- 
 appearing. There is also a general tendency to raise the po- 
 litical status of the poor classes. 
 
 4. Family Relations 
 
 The law governing the rights and duties of husband and 
 wife toward each other has been throughout all time and the 
 world over the law of the stronger. The weaker one who 
 most needed the protection of the law is the one from whom 
 its protection has been withdrawn. In Asia the wife is and 
 always has been little less than a slave to her husband, and 
 polygamy is allowed to further extend the mastery and gratify 
 
GENERALIZATIONS 959 
 
 the propensities of the male law-givers. In ancient Rome 
 wife and children were under the absolute power of the hus- 
 band and father, but polygamy was not allowed and religion 
 imposed many wholesome restrictions on the exercise of his 
 power. In some rare instances savages have respected the 
 rights of women, but the rule has been that the wife was 
 practically a slave, and often a captive forced to become the 
 wife of her captor. In spite of the law it has not infrequently 
 happened that the wife, being the more capable of the two or 
 the more resolute, has ruled the household, but on the other 
 hand the instances of most gross oppression have been dis- 
 tressingly common. Where the union is one of genuine af- 
 fection the law is a matter of minor concern, for each volun- 
 tarily does all he can for the welfare of the other. Kansas 
 and some other American states have reached in their laws 
 the true conception of absolute equality of rights in the hus- 
 band and wife in their children, their property and political 
 rights. The mothers of the coming generation are deemed 
 entitled to as much respect and consideration as the fathers. 
 The laws of most of the American and European states how- 
 ever still maintain the mastery of the husband with more or 
 less emphasis. In different countries and at different times 
 marriage has meant anything from the capture or purchase 
 of a wife from a master or father to a free and voluntary 
 choice on the part of both. By some people in some countries 
 property considerations are deemed controlling, while by others 
 they are ignored and even deemed despicable as affecting the 
 true basis of marriage. Polygamy though nowhere general, 
 owing to the equality in numbers of males and females, is al- 
 lowed in all Mohammedan countries and will continue so long 
 as the Koran is the supreme law. In all Christian countries it 
 is condemned. Polyandry though allowed in a few places is. 
 so rare that it is seldom mentioned. A world wide evil of 
 great importance lies in celibacy and prostitution. As the 
 virtuous marriage is the source of all virtue, prostitution is 
 a never failing parent of vice. In no modern country is mar- 
 riage made obligatory either by law or religious teachings. 
 Ancient Peru affords the only instance of compulsory mar- 
 
96o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 riages at a stated age. If it be true that under the Peruvian 
 system there was neither a pauper nor a prostitute it is well 
 worthy of study in this connection. Modern governments 
 leave the question of marriage or celibacy entirely to the 
 parties concerned. There are many and diverse laws relating 
 to the forms of contracting marriages and some restrictions 
 on the marriage of classes of persons who are deemed unfit, 
 and of different classes with each other, but none designed to 
 promote them. 
 
 The laws relating to divorce are quite as diverse as those 
 relating to marriage and range all the way from the right of 
 the parties to separate at will to prohibition of an absolute 
 divorce. In America and Europe a decree of a court for 
 such cause as the law of the particular country deems suffi- 
 cient is generally required. No other field of legislation is 
 more perplexing or works out less satisfactory results. The 
 effects of divorces on the children of the pair demand con- 
 sideration and some states now require that they be repre- 
 sented at the trial of a divorce case. The ill success of all 
 divorce legislation seems to indicate that happiness in the 
 homes must be secured in some other way, and that divorce 
 is but a clumsy make-shift resorted to because the true remedy 
 has not been discovered. The grand difficulty is that the 
 whole subject of matrimonial relations is too delicate for the 
 state to deal with. The God of Love alone can legislate 
 wisely for it. 
 
 In most countries the father has been and still is the master 
 of the children. In ancient Rome this mastery lasted through 
 life and included the descendants in all degrees through the 
 male lines and the wives of sons and son's sons. Patriarchal 
 systems have prevailed in many Asiatic countries. In Europe 
 and America the children are emancipated at an age variously 
 fixed by the laws of the different countries and in many 
 states the law releases parents and children thereafter from 
 all legal obligation toward each other. In America the spirit 
 of migration is so active that the grown children soon leave 
 the homes and families are scattered far and wide. This 
 effectually prevents the growth of extended patriarchal house- 
 
GENERALIZATIONS 961 
 
 holds like those so common in Asia and eastern Europe. 
 While the right of parents to punish their minor children is 
 recognized in all countries the laws of the leading ones now 
 prohibit cruelty to them. The father cannot lawfully put his 
 child to death, maim or permanently injure it. Modern ten- 
 dencies are toward a weakening of paternal authority and 
 family ties. In this there is a mixture of good and ill. It 
 tends to widen the bonds of sympathy among remote families 
 and distant people, and to weaken them between members of 
 the family. This sometimes results in neglect of duties to- 
 ward one another and especially toward aged parents. Per- 
 haps this foreshadows a state of society in which kindness will 
 be diffused and the sense of kinship with and duty to others 
 will extend beyond the family to all humanity. 
 
 5. Land Laws 
 
 What is title to land and whence does it come? My birth- 
 place was the ancient hunting ground of the now extinct 
 Eries. My father who held title to our home, my mother, 
 brothers and sisters with whom I dwelt in childhood have all 
 passed away, but the hills and the valleys, the woods, mead- 
 ows, pastures and streams are still substantially as they then 
 were. The clay tablet on which a deed to a lot in Babylon 
 was inscribed is dug up and deciphered by the antiquary, but 
 grantor and grantee and the Babylonian kingdom have been 
 no more than a reminiscence for thousands of years. One 
 man held such tablets for many pieces while others occupied 
 them as his tenants. Landlord and tenants soon gave back 
 to the soil the substance of their lifeless bodies which is now 
 mixed with the other dirt of the wild waste where the great 
 city stood. The tablets still endure but neither confer nor 
 take away rights. Nations rise, make laws by which they as- 
 sume to grant perpetual titles to the face of the earth, fall and 
 sink into oblivion, but the mountain and plain, hill and valley 
 still drink in the sunlight and the rain and bring forth their 
 annual verdure for whomsoever may come to them. What is 
 ephemeral man that he claims perpetual dominion over the 
 land on which he rests for a brief period and then withers 
 
962 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and decays like the grass or drifts away like the passing 
 cloud? What is the lesson of it all? The earth is for the 
 living. The dead merely return their bodies to it. 
 
 Men have made land laws on many diverse theories. A 
 tribe of American Indians occupied a district as a common 
 hunting ground. Some of them cultivated little patches of it 
 and took their produce. In time a superior force came and 
 drove them away. None of them had thought of permanent 
 ownership of any of it. Pastoral tribes in the Eastern Hemi- 
 sphere grazed their herds where grass grew and had property 
 in them but not in the land. Families and tribes settled down 
 and tilled the soil, recognizing a common title in all the people 
 of the village. Where land was abundant each used so much 
 as he pleased. When increase of numbers imposed limitations 
 on the claims of each the community made assignments from 
 time to time as changing conditions dictated. Possession 
 protected by the public force suggested the idea of continuing 
 right of possession and use. Temporary absence in war or 
 on business suggested right to possession on return and to 
 the products during absence. Temporary occupancy by an- 
 other established the relation of landlord and tenant, and the 
 sum paid by the tenant for the privilege of occupancy sug- 
 gests the power and advantage to be derived by using the 
 public force to maintain the dominion of the absent landlord. 
 It is then soon perceived that with the conversion of the right 
 of possession into the right to dictate terms of possession to 
 others for an indefinite period in the future a scheme of 
 mastery capable of extension over many tenants may be 
 evolved. The landlord then may have harvests from fields 
 he has not sown and receive service for which he makes no 
 return of service. The right to dominate a part of the face 
 of the earth without occupancy being fully established and 
 extended by the law of wills and inheritance the complex sys- 
 tem of land tenure which prevails in Europe and America 
 developed. Regulation of the occupancy of land in a densely 
 peopled country is imperative and naturally and necessarily 
 devolves on the law-making power. The Romans treated 
 land as a vendible commodity and placed it in the same class 
 
GENERALIZATIONS 963 
 
 with slaves and work animals required for its tillage. Un- 
 restricted right of purchase and sale always results in the 
 concentration of title to land in the hands of the few, and this 
 tendency was well illustrated at Rome and throughout the 
 empire. The laws compiled by Justinian dealt mainly with 
 title to slaves, land and other property, and the transfer and 
 perpetuation of property rights by sale, will and inheritance. 
 The feudal system differentiated land titles from other forms 
 of property rights and based its theory of political power on 
 a modified scheme of title to land. It was then perceived that 
 the ownership of slaves was unnecessary, that title to land in 
 effect gave ownership of those who must live on it, and that 
 full dominion over the land could be made to mean full per- 
 sonal and political dominion over all the people who dwelt on 
 it. The king then became lord paramount, holding the ulti- 
 mate title to the soil of his kingdom, which he parcelled out 
 among his vassals and their dependents according to circum- 
 stances. The feudal system gave way in turn to the com- 
 mercial view of land titles which had preceded it, and land 
 again became subject to bargain and sale. There are still 
 survivals of the ancient village systems of common tenure 
 without individual right of sale and of various modifications 
 of it, and of some of the incidents of feudal tenure, but sub- 
 ject to such restrictions as local laws impose, perpetual do- 
 minion over land may now be bought and sold in most of 
 Europe. 
 
 In the United States the government has claimed the ulti- 
 mate title to all the land which had not become private prop- 
 erty before the establishment of the government, subject only 
 to the possessory rights of the Indian tribes. The Indian 
 titles have been acquired by treaties from time to time. 
 Through the acquisition of political sovereignt}^ over the ter- 
 ritories and the Indian rights the United States became pos- 
 sessed of a vast area of fertile land. In the early days some 
 of this was sold in large tracts, but later the quantity allowed 
 to one purchaser was restricted to 160 acres of ordinary land. 
 Later the right to acquire title at all was limited to actual 
 settlers to whom the land was given outright after five years 
 
964 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 occupancy and improvement. The area of good available 
 agricultural land nov^ owned by the government is very small 
 and no longer affords accommodations for the multitude. 
 While the quantity of land which a settler could acquire from 
 the United States has been thus restricted, the title conveyed 
 has been full and absolute and no restrictions have been placed 
 on transfers to purchasers after completion of the settler's 
 title. It has followed naturally that a large part of the set- 
 tlers have sold their homesteads soon after perfecting their 
 titles and fallen back into the ranks of tenants. The process 
 of consolidating the holdings in the hands of speculators and 
 investor goes on quite rapidly, and is counteracted only by the 
 laws of inheritance and willingness to take profits out of 
 sales. The tendency for titles to pass into the hands of the 
 few is very marked. The theory of the title conveyed by a 
 patent from the government is that it is full and absolute in 
 the patentee, his heirs and assigns to the end of time, and 
 that it carries with it all beneath to the center of the earth 
 and all above to the stars; subject only to the taxing power 
 and the exercise of eminent domain for public uses. This 
 gives a legal basis for the worst form of land monopoly. The 
 owner may use the land or not at will, absolutely exclude 
 all occupants or dictate the terms of tenancy. The courts, 
 backed by the whole power of the state will enforce his rights, 
 no matter how oppressively exercised. No person may be- 
 come a tenant except on the landlord's terms. So long as 
 government land was open to every settler farmers had a more 
 or less available alternative, but now the outlet is substantially 
 closed and the landlord's extortion is only limited by the 
 steadily diminishing difficulty in obtaining tenants. Who- 
 ever has surplus income may extend his holdings of land ac- 
 cording to his means, and the landless are confronted with 
 advancing prices and diminishing net incomes. The theory 
 of absolute title regardless of use encourages speculation in 
 unoccupied farm lands and vacant town property, through 
 which many great fortunes are made by those who merely 
 obstruct settlement until their cupidity is satisfied. The 
 profits realized from such investments are merely sums ex- 
 
GENERALIZATIONS 965 
 
 torted from those who ultimately use the land. The specu- 
 lator renders no service as an equivalent for his profits, and 
 does nothing in connection with his dealings for which he 
 merits a reward. No theory of land tenure more vicious in 
 principle has ever obtained in any country. The dual system 
 of state and national sovereignty renders it exceptionally 
 difficult to deal with land monopoly in a thorough and com- 
 prehensive manner. Though the laws are as favorable to the 
 concentration of land in the hands of the few as were those 
 of ancient Rome before the republic gave way to the military 
 despotism, there is still a great middle class which may pro- 
 tect itself from conversion into a vast illiterate, debased prole- 
 tariat, such as Rome then had. Title to the face of the earth 
 vested in the few enables them to condition the existence of 
 the many, but title is wholly dependent on artificial human 
 law and its oppressive use on the aid of the public force. 
 Political power is here vested in the multitude and they have 
 it in their power at all times to change the law and abolish 
 land monopoly. Every family requires a home. Home is 
 the citadel of all virtues and good influences. Probably the 
 most efficient step that could be taken toward the prevention 
 of crime and the social evil would, be to provide every family 
 with a home of its own. Homestead entry of government 
 land is now available only to the very few and will soon 
 cease entirely unless title is reclaimed from private owners. 
 Exemption of homesteads from forced sale for the payment 
 of debts does not give homes to those who have none. All 
 the theories of the law are theories of mastery for the land- 
 owner and dependence on the part of the landless. Many 
 young men do not marry because they are not able to provide 
 homes, and young women cannot marry till husbands are 
 available. The ancient Peruvian government solved these 
 problems. This proves that it is not only possible but prac- 
 ticable to assign to each family a share of the face of the 
 earth. The broad question which every state must answer 
 by its laws is, shall one part of the people be dependent on 
 another for an abiding place on the earth? The answer now 
 given is yes. Is this the answer that accords with justice and 
 sound public policy ? 
 
966 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 6. Inheritance 
 
 One of the leading causes of the destruction of democracies 
 has been rules of inheritance. It was long an unsolved puzzle 
 to the writer, why so many cities of Europe had started as 
 democracies, been converted into oligarchies and then subju- 
 gated by despotisms. Illustrations of this round can be 
 found in great number among the free cities of Greece, Italy, 
 Germany and Russia. Notwithstanding the patent fact, that 
 as free democracies they were far more vigorous and pros- 
 perous than after their institutions were changed, there 
 seemed to be a fatality that doomed every democracy to de- 
 struction and that fore-ordained the succession of a tyrant. 
 Having always held firm faith in the final triumph of that 
 which is morally best, it was hard to understand why what 
 seemed both a less just and less efficient form of social or- 
 ganization persistently supplanted a better one. The secret 
 lies in the unjust rule of the transmission of property by in- 
 heritance, coupled with the theory of absolute title to land. 
 On these most legal tyranny is based. The practical 
 operation of laws of inheritance is easily traced. In the first 
 generation the most crafty and energetic gain the largest 
 shares of wealth. The indolent and improvident remain poor. 
 In the next generation some inheritances are dissipated by 
 improvident heirs, others are preserved and increased. In- 
 termarriages occur mainly between those of the same class, 
 and fortunes are thus consolidated. In the course of time a 
 few great estates absorb the whole landed property, and 
 much of the movable as well, and the society is divided into 
 the few rich and the many poor. So long as officials are 
 chosen by vote of the whole, the more wealthy and prominent 
 men are usually elected. Elections then become either a mere 
 matter of form or are dispensed with. The few families, 
 which have the property, have also the political power. Some- 
 times, as at Venice, a close corporation is formed, which 
 rigidly excludes all new aspirants for political influence. 
 When this stage is reached decay sets in. The ruling class 
 seek enjoyment of their riches rather than the public good. 
 
GENERALIZATIONS 967 
 
 The great multitude struggle along in ignorance and poverty. 
 The law of natural selection of leaders in business and state 
 affairs is stifled. In and in breeding causes physical and 
 mental decay in the ruling class. Experience everywhere 
 shows that the strongest and brightest men come quite as 
 frequently from the poorer classes as from the wealthy, but 
 where both the management of properties and the direction 
 of public affairs are denied them, the state loses their natural 
 force. Thus it happens that the pubHc get neither the benefit 
 of the natural strength of the few rich or the many poor. 
 The energies of the rich are deadened by afHuence and easy 
 living, and those of the poor by want and ignorance. 
 
 The maximum of energy can only be maintained by start- 
 ing the members of each generation on a substantially equal 
 footing, and requiring each individual to demonstrate his 
 ability to make good use of wealth and power before entrust- 
 ing him with it. The law of inheritance passes the wealth 
 and power of the father to the son, no matter how weak, im- 
 moral or unfit he may be to use it. A rule of primogeniture 
 accentuates the evil. The law which executes the will of the 
 testator, as a general proposition, merely substitutes a private 
 rule of inheritance for the public law. In practical operation 
 it works out substantially the same results and passes the 
 property to one or more favored members of the donors 
 family, and in case of a failure of issue supplies the want by 
 selecting some favorite from without the family. 
 
 Nowhere are the effects of the laws of inheritance more 
 clearly shown than in the city of New York, where all the 
 landed property has already been concentrated into the hands 
 of about six per cent of the families, leaving the other ninety- 
 four per cent as their tenants. Most of the great estates have 
 passed down from generation to generation from the early 
 Dutch settlers. The great wealth of most of the proudest 
 families is due to no merit of the present owners, and they 
 live in unearned luxury, while performing no useful function 
 for the public. It is fundamentally wrong and wholly unjust 
 to start six per cent of the children born in New York as the 
 owners of all of it, and the other ninety-four per cent as 
 
968 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 subject to whatever terms the six per cent may impose for 
 Hving- on the island. Justice demands of the state that it give 
 to each member of each generation fair treatment. This im- 
 plies education and a portion of the face of the earth. Noth- 
 ing is more firmly rooted in the prejudices of the people than 
 the rules of inheritance and the power to make testamentary 
 disposition of property, yet no other legal rules work out 
 either so much injustice or so many public disadvantages. 
 
 The greatest force to laws of inheritance is found in India, 
 where not only the property of the ancestor passes to the 
 heir, but also his social status and occupation. The extreme 
 rigidity of this system has been often remarked, but the fact 
 that it has its basis in a theory of inheritance and is but an- 
 other harmful application of it seems to be generally over- 
 looked. Hindoo law makes most minute provisions for the 
 transmission of property by descent. The law of caste sepa- 
 rates the people of one generation into classes and then passes 
 that division down from generation to generation. That it is 
 contrary to nature is abundantly demonstrated by the numer- 
 ous violations of it, which have resulted in the production of 
 so many sub-castes. In its operations it is far more arbitrary 
 and restrictive of personal liberty than any despotism of a 
 single ruler can possibly be, for it places the individual in a 
 vice where he cannot move to better his condition. It tends 
 to idleness when conditions are unfavorable to the inherited 
 calling, to inordinate pride among the highest castes and 
 extreme servility among the lowest. It stifles spontaneity of 
 individual effort, because of the limitations imposed on the 
 right of an individual to select his own calling and to fol- 
 low a variety of occupations. Trade guilds and labor unions 
 are extremely mild in their dictations to their members when 
 compared with the Indian castes. The enforcement of these 
 restrictions is not dependent on a ruler or on the whole body 
 of government officials. Not only the Brahmans and the 
 military caste, but all the castes and the whole weight of re- 
 ligious influence, education and public sentiment unite in en- 
 forcing this most harmful system. So completely are all the 
 people imbued with devotion to the plan of their social or- 
 
GENERALIZATIONS 969 
 
 ganizatiun, that to attempt a reform is to oppose the whole 
 mass, yet the whole scheme is dependent on a purely artificial 
 law of inheritance, which is neither founded on sound morals 
 or expediency. 
 
 As with the laws recognizing slavery, men cling to rules of 
 inheritance with great tenacity, because they give advantages 
 to those of most influence. The poor and ignorant fail to 
 grasp their effects. In the southern states the poor whites, 
 who suffered almost as much from slavery as the slaves them- 
 selves, took great pride in their superiority as freemen, and, 
 when the war came, went out and fought for slavery under 
 the guise of states rights. The poor and landless now gener- 
 ally believe in the land and inheritance laws. 
 
 Novels, which are read far more than any other class of 
 books, often picture the hero or the heroine as finally re- 
 warded for suffering and tribulation with an estate from some 
 relative. The popular fancy still calls for unearned wealth. 
 Fair compensation for services rendered, added to a fair 
 share of the natural wealth of the earth and the accumula- 
 tions of past generations, fails to satisfy. The average man 
 or woman wants a great gift from fortune, rather than 
 justice. 
 
 The ancient Peruvians appear to have been the only people 
 who had a just conception of the relation of the state to its 
 people in regard to inheritances, but there was much to con- 
 demn in their system. The state assigned to each newly mar- 
 ried pair a home, and also distributed among its people a 
 share of the products of the flocks, herds, mines and fisheries. 
 All took their patrimonies, not from their ancestors, but from 
 the state as the common father of all. The Inca however 
 took an inordinate share for his household, and, worst of all, 
 there was no room for the exercise of the inventive genius 
 of the people. All were tied down by a rigid system, which 
 they could neither change nor break away from. The idea 
 however of the state as the heir of all deceased persons, bound 
 to assign to each child its share of all the estates, is one that 
 the people of the most advanced nations may well consider. 
 In no other manner can full justice be done to each genera- 
 
970 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 tion. In no other way can the full strength and energy of 
 each individual in the race of life be as surely called out as 
 by giving to each an equal start in a fair field. Natural se- 
 lection then takes place; the strongest and ablest lead, and 
 the weak and sluggish follow. This is the natural law. The 
 artificial rules of land titles enduring after death, and of in- 
 heritance of property, deaden the energies of the so-called 
 fortunate heirs of wealth by removing the necessity for effort, 
 and lessen the efficiency of the children of the poor by depriv- 
 ing them of the means to do with. 
 
 In all ages and in every country the maximum of all virtues 
 is found among the middle class, who are above immediate 
 want and yet under the necessity of exercising industry and 
 economy. Public policy requires that each member of so- 
 ciety should perform a useful part and render service in re- 
 turn for all services received. Inherited wealth enables the 
 heir to receive service and return none. The state thus loses 
 the benefit of the work the heir should have done and, what 
 is often of far more consequence, the labor expended in waste- 
 ful extravagance. The services of the great retinue of 
 servants, maintained by some people of great wealth merely 
 to minister to their personal vanity, are wholly wasted and 
 usually give no real enjoyment to the master. The healthy, 
 enjoyable life must always be the life of useful activities, in 
 the benefits of which others share. The evil influences, which 
 great* inheritances have on the heirs, begin usually as soon as 
 the child is taught to expect the estate, and that labor to earn 
 a subsistence will be unnecessary. They end only with death. 
 Where a great estate falls to an infant of tender years, the 
 title is vested in an owner incapable of managing it, where it 
 vests in a profligate, it is wasted in riotous living. In practice 
 any system that would meet general approval would doubtless 
 leave the home in the possession of the family of the deceased 
 owner. It is probable that it would also leave to them the 
 farm of limited size, the work shop, the store, or other place 
 of business of limited value and necessary for earning a liveli- 
 hood, where there is a member of the family able to use it. 
 
 The radical change, which would seem desirable, is one 
 
GENERALIZATIONS 97i 
 
 cutting off the transmission of great estates to unworthy 
 hands, and placing them in the hands of the pubHc for distri- 
 bution in such manner as will best promote the general wel- 
 fare. Like all other radical changes of system, it can only be 
 effected when the public demand it. The imposition of in- 
 heritance taxes is a timid start toward the curtailment of 
 great inheritances. 
 
 7. Contracts 
 
 The law of contracts necessarily extends over the whole 
 field of commercial transactions, industrial relations and in- 
 vestments. Its subject matter includes the land and all that 
 grows upon or lies beneath it, all movable things and all the 
 artificial and intangible forms of property and assurances of 
 benefits that men devise. In the most advanced states living 
 persons are no longer subjects of bargain and sale but con- 
 tracts for their services grow in number and variety. Slavery 
 having been abolished, every person of full age and sound 
 mind except married women is theoretically free to buy and 
 sell whatever he can and make all sorts of contracts for ser- 
 vice from or to others. For their protection minors are 
 shielded from improvident contracts made prior to an age 
 arbitrarily fixed in most countries at twenty-one years. In 
 many of the American states married women now have sub- 
 stantially the same right to make contracts and acquire prop- 
 erty that men have. 
 
 Freedom of contract is of the very essence of liberty. 
 There can be no doubt that the modern increase in industrial 
 and commercial activities is largely due to increased freedom 
 of contract and of occupation. The abolition of slavery in 
 the southern states instead of ruining their industries ulti- 
 mately stimulated them. Service under contract gives better 
 results than slave service. The abolition of serfdom in Rus- 
 sia has resulted similarly. The modern tendency everywhere 
 is to take away restrictions on the right of the poor to change 
 locations and masters. There is also a general tendency to 
 throw off restrictions on the purchase and sale of land and 
 on the importation and exportation of products from one 
 
972 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 nation to another. It is perceived that full advantage of nat- 
 ural conditions can only be taken by allowing the shifting of 
 population according to needs and conditions and the pro- 
 duction in each place of the commodities for which the cli- 
 matic conditions and natural facilities best adapt it. 
 
 There is no difficulty in making the law in terms confer full 
 liberty to make contracts, but to secure by legislation fairness 
 and equality in dictating their provisions involves endless 
 complications. There is full liberty in many states to nego- 
 tiate contracts concerning land, but no approximation to 
 equality of control over their terms. Ownership of land is 
 monopolistic in its nature. Even where the law imposes no 
 restrictions on dealings in land the competition of sellers in 
 the market is limited to the particular tracts that the owners 
 are willing to sell. All the rest is withdrawn from the market. 
 If the competition between buyers were limited to landless 
 ones the situation would not be so unfavorable to them, but 
 the fact is that great landowners are often the most persistent 
 land-buyers. Those who derive large incomes from rents 
 affording them a surplus for investment often use it to in- 
 crease their holdings. The tenant of farming land is not a 
 formidable competitor of his landlord in the land market. 
 The landlord is usually in a position to prevent him from 
 having any surplus income to invest. In many countries the 
 law interposes artificial obstacles in the way of the landless 
 purchaser. 
 
 The advantage of the land-owner in making contracts re- 
 lating to the use of his own land is even more marked. People 
 multiply, but the land area neither multiplies nor stretches. 
 All must have abiding places. Every newcomer requires a 
 part of that which is already the private property of another. 
 He can use it only on the terms imposed by the owner. If 
 a tenant increases the fertility of the land he tills or other- 
 wise improves it the landlord may increase his rent accord- 
 ingly. In a city the more costly the buildings erected by a 
 tenant the higher the ground rent. These advantages held 
 by the land-owner are wholly unearned and unmerited and due 
 solely to the system of land monopoly sanctioned by the law. 
 
GENERALIZATIONS 973 
 
 The same principle of monopoly applies also in the labor 
 market. Agricultural laborers can find employment only 
 from the farmers. The supply of land is strictly limited and 
 the owners may determine absolutely what work shall be done 
 on it. The number of laborers may fluctuate but whether 
 few or many all must accept the terms offered or starve, so 
 far as this line of employment is concerned. The monopoly 
 of labor applies more acutely where great numbers of oper- 
 atives are dependent on a single mill, mine, factory or other 
 industry and must accept the terms offered by the employer or 
 migrate to another. place. Not merely the rate of wages but 
 the conditions of service are dictated by the employer, except 
 as the employees are able to approximate equality of position 
 through combination and dealing as a unit. Some semblance 
 of a monopoly of the supply of labor for certain lines of 
 work is sometimes effected through labor unions, but the 
 need of wages on the part of the laborer is ordinarily far 
 more urgent than the need for help on the part of the em- 
 ployer, and the closest combination falls short of giving 
 equality of position in most cases. There are cases of the 
 ruin of employers by strikes of the laborers. Industrial war- 
 fare is of the nature of war, wasteful and destructive to all 
 engaged in it. The relation of the law to the parties to such 
 contests is more remote than in those relating to land. The 
 law does not directly confer the advantage, but it is often 
 due to superior capacity exhibited in building up the employ- 
 ers business. Most great enterprises however are now car- 
 ried on under corporate charters granted by the state. The 
 strength of the company arises from the law which authorizes 
 the combination of capital and energy under a single head. 
 This in its inception is a combination of interests and natur- 
 ally suggests and leads to further combinations and consoli- 
 dations resulting in great manufacturing, trading, mining 
 and transportation monopolies, many of which are able to 
 dictate, not merely terms of employment to their laborers, but 
 also the terms of their contracts with all others with whom 
 they deal as bu3^ers, sellers, carriers or bailees. These arti- 
 ficial entities being dependent on the law for their existence 
 
974 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 are subject to visitation by the law-making power for the 
 correction of whatever abuses of their privileges they may 
 be guilty. 
 
 In many instances laws are passed for the avowed purpose 
 of aiding one party to a class of contracts. As we have seen, 
 in the reign of Elizabeth of England favorites were enriched 
 by grants of trade monopolies enforced by the government. 
 Many modern nations give the domestic producers of certain 
 classes of commodities advantages in the home markets by 
 means of protective tariffs imposing burdens on international 
 competition. The tax levied on the imported foreign product 
 is imposed rather to shut out competition by the foreign pro- 
 ducer than to raise revenue for the government. To stimulate 
 inventive genius inventors are given monopolies of their in- 
 ventions for limited periods. Buyers must accept their terms 
 of sale till the patent expires, but at the end the public gets 
 the full benefit of the invention. Similar encouragement is 
 given to authors and artists. 
 
 Added to these are less easily classified enforceable con- 
 tracts made under conditions of mastery and dictation of one 
 over another. The courts refuse to enforce contracts made 
 under compulsion, but legal duress falls far short of includ- 
 ing all cases in which the strong and crafty overawe or over- 
 reach the weak and confiding. Having shielded minors, 
 insane and imbecile persons from improvident contracts, it 
 was long deemed sound public policy to require each person 
 to protect his own interests in his dealings and to enforce 
 whatever agreements the parties make in lawful transactions. 
 Modern legislatures have come to take cognizance of some 
 of these positions of advantage, especially on the part of 
 employers and to avoid such terms as are designed to shield 
 them from reasonable care for the health, safety and morality 
 of their operatives. 
 
 The law of most countries requires some formal requisites 
 for certain classes of contracts. What is termed the Statute 
 of Frauds and Perjuries requires contracts for the sale of 
 lands and various other classes of contracts to be in writing 
 and signed by the party to be charged thereunder, and is very 
 
GENERALIZATIONS 975 
 
 generally in force in English-speaking countries. The Com- 
 mon Law recognizes differences in the legal force of dift'erent 
 forms of written contracts, ranging all the way from the 
 absolute conclusiveness of judgments of courts and public 
 records of certain kinds to the mere prima facie disputable 
 evidence of a receipt for money. Requirements of written 
 evidence of contracts and promises are based on distrust of 
 oral testimony and human memory. Written instruments 
 have the advantage of unfailing memory, and in the process 
 of reducing an agreement to writing it becomes necessary to 
 make its terms clear and definite so that they can be accur- 
 ately stated. The statute is designed mainly to protect against 
 certain classes of promises unless they are in writing. Like 
 all rigid rules relating to human dealings it works injustice 
 in many cases, yet seems to be regarded with general favor. 
 The Roman law and the Civil Codes of France and Germany 
 make different classifications and prescribe different formali- 
 ties, but make requirements based on the same reasoning. 
 
 Contracts for the payment of money, made in the form 
 of negotiable paper play an important part in the business 
 world. The rule cutting off all defenses to such contracts in 
 the hands of bona fide holders for value without notice of 
 such defenses seems reasonable and necessary for the pro- 
 tection of those who take such paper in lieu of money in 
 commercial dealings, but when applied to promissory notes 
 bought as an investment often aids swindlers working in 
 combination to enforce the payment of notes fraudulently ob- 
 tained for no good consideration. 
 
 While it is a long established rule of jurisprudence through- 
 out Europe and America that the law will not enforce immoral 
 contracts, the standard of morality recognized by the courts 
 has not always been an exalted one. In commercial dealings 
 there is ordinarily an element of chance for gain or loss that 
 cannot be measured accurately, and some merchants grow 
 rich while others lose their little capital. Dealings in the 
 stock markets and on boards of trade appear in form to be 
 similar to the business of the merchants, but the purchase and 
 sale of stocks, grain and provision for future delivery, al- 
 
976 EVOLUTION OF GOVERNMF^NTS AND LAWS 
 
 though in form legitimate commercial contracts, are largely 
 mere bets on the rise and fall of prices in the markets. Dis- 
 honest combinations of speculators to cause abnormal fluctu- 
 ations of prices are natural attendants of such operations, and 
 many of the modern abnormal accumulations of wealth come 
 from such dealings. Under the new German Code such con- 
 tracts are void. The discovery and production of mineral 
 wealth is in its nature speculative and uncertain, and dealings 
 in mines and mining shares are necessarily uncertain ventures. 
 Only through combinations sufficiently large to give a gen- 
 eral average of results can there be a fair distribution of 
 profits and losses and the ruin of some and the enrichment of 
 others avoided. This principle of distributing burdens and 
 sharing benefits is well illustrated by contracts of insurance 
 of life and property which in form appear very much like 
 wagers at great odds that a person will not die or a house 
 will not burn within a given period, yet are in fact quite 
 scientific methods of distributing and equalizing the burdens 
 of disaster and the waste caused by the elements. The wrongs 
 perpetrated through unfair and immoral contracts which the 
 law-makers deal with now are similar to those encountered 
 in the past, but as human relations grow in complexity the 
 difficulties attending the enforcement of fundamental moral 
 principles increase. It is easy to declare in terms that the 
 public force shall not be used to aid the extortioner, the 
 gambler or the immoral operator in his schemes, but it is 
 not easy to determine just where and to what extent elements 
 of extortion, gambling and immorality have entered into hu- 
 man dealings, to afford full relief from their evil consequences 
 and still allow the measure of liberty necessary for healthy 
 business activity. 
 
 The suppression of lotteries and gambling houses, the re- 
 quirement of publicity of the financial condition of banking, 
 railroad and other corporations, the regulation of the charges 
 of public service corporations, provisions for the safety and 
 health of employees and efforts to prevent monopolistic com- 
 binations, evidence a growing appreciation of the application 
 of higher moral standards to the law of contracts. Some 
 
GENERALIZATIO'NS 977 
 
 European governments still profit from the vices of lotteries 
 and gambling houses which they license, but in the United 
 States the effort is to suppress them. 
 
 For the enforcement of contracts of every kind and char- 
 acter the parties are dependent on the law, the courts and the 
 public force. Shall the state give effect to those having any 
 taint of unfairness or immorality? The answer to the ques- 
 tion cannot be a clear and unqualified negative because of the 
 difficulty in applying nice moral tests. Legislatures and 
 courts can at the best undertake to make only a fair approxi- 
 mation by general rules to the enforcement of moral stand- 
 ards. Those who profit largely from unfair conditions and 
 unjust laws are in all countries in positions of more or less 
 advantage to influence governmental action and the power- 
 ful are seldom wedded to the most exalted conceptions of 
 right. If they were so they would regard their unearned 
 wealth as a trust held for the use of others. So long as the 
 great multitude remain ignorant and illiterate oppression and 
 wrong flourish, but with the general diffusion of knowledge 
 and the extension of representative government law-makers 
 and courts are brought to see more of every side of public 
 questions and to feel impulses from the weak and destitute 
 as well as from the rich and powerful and the law of con- 
 tracts becomes imbued with more of the spirit of justice. 
 
 8. Combinations 
 
 This is the age of private combinations. A very good test 
 of the stage of civilization which a people have reached is the 
 number, extent and purposes of the voluntary combinations 
 they form. No great undertaking can be carried forward 
 without combination and concert of action of many people 
 working toward a common end. The most potent incentive 
 to great combinations has usually been war, and the form 
 military. All great military leaders have excelled in capacity 
 for organization and direction of the operations of great 
 numbers working with a common purpose. The saying "in 
 time of peace prepare for war" expresses the necessity for 
 the employment of peaceful activities as prerequisite to war- 
 
978 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 like ones. Among savages bows, arrows and other crude 
 weapons must be made and an understanding reached as to 
 the men who are to use them and the time and manner of 
 attack or defense. As civiHzation advanced it was soon per- 
 ceived that continuance of the struggle depended not merely 
 on numbers of men and supplies of arms but also of food and 
 clothing. Granaries had to be filled, clothing made and trans- 
 portation of supplies provided for. To facilitate military 
 operations the Romans and Peruvians became great road and 
 bridge builders. The Greeks and Phoenicians gave more at- 
 tention to their boats, and the Persians and Hindoos to horses, 
 chariots and elephants. The invention of gunpowder made 
 necessary not merely its manufacture but a long chain of in- 
 dustrial activities for the production from iron ore of guns 
 and the construction of carriages and attendant equipments. 
 With the use of costly weapons and soldiers trained to use 
 them comes the necessity for a burden of taxation to defray 
 the expenses, involving a peaceful organization to extort 
 money for war and its incidents. As new forms of high ex- 
 plosives have been invented it has been rendered necessary to 
 strengthen the forms and fibre of the guns and add costly 
 machinery to handle them. Warships must be large enough 
 to bear ponderous armament and be shielded with armor plate 
 to resist the shots of like guns. A long chain of industries 
 extending from the iron and coal mines through the furnaces, 
 foundries and mills to the forts, arsenals and ships is now 
 maintained to fill the demands of modern armaments. Food, 
 clothing, hospital equipments and supplies and all the para- 
 phernalia of camp and battleship must be produced and stored 
 to await the contingency of unrestrained national greed or 
 hatred. The one great useful lesson that war teaches is the 
 value of combined effort to a common end. Courage, devo- 
 tion to duty, patriotism and all the other virtues of the private 
 soldier meet disaster if efficient combination and concert of 
 action is wanting. But the purpose of all this long chain of 
 preparation is death and destruction. The possession of a 
 great armament excites distrust and arouses enmity. Lasting 
 peace and security is and always must be dependent on mutual 
 
GENERAOZATIO'XS 979 
 
 confidence and good will. For two men to arm for conflict 
 with each other manifestly has no tendency to promote neigh- 
 borly conduct or good will. The tendency of national arma- 
 ments is the same. Why not substitute activities designed to 
 promote good understandings and mutual confidence for these 
 hateful ones? Both consciously and unconsciously the substi- 
 tution is being made. The inventions that vivify have far 
 outstripped those that destroy. By the use of high explosives 
 a cannon ball may work havoc twenty miles away, but peaceful 
 communication leading to good understanding and mutual 
 help may be had almost instantly between people on opposite 
 sides of the globe. While forts are built to protect seaports 
 against hostile attacks, lights and buoys to safely guide 
 friendly commerce, breakwaters to shield against storms, piers 
 and docks to afford safe and easy landings are constructed to 
 welcome all who come on peaceful missions. Torpedoes are 
 sometimes placed in channels and harbors for the destruction 
 of the warships of enemies, but vastly greater effort is ex- 
 pended in removing rocks and reefs and deepening and widen- 
 ing channels to make safe the entry and exit of merchant 
 ships. The ancient Chinese Empire was shielded from hostile 
 attacks by the great unexplored oceon on the east, the Him- 
 alayas, Kuen-Lun and Thian-Shan mountains on the south 
 and west and they built the great wall to complete the circuit 
 of their defenses. Thus isolated they developed their unique 
 civilization uncontaminated from without, except when the 
 Tartar hordes broke through the barriers and established their 
 rulership over them. Japan produced its busy millions in 
 isolation from the distant west. Foreign warships and sol- 
 diers have come to these peaceful people in this age of inter- 
 course and taught them their superiority in the art of 
 destruction. But foreigners have also brought ship loads of 
 unheard of inventions and useful things, knowledge of nat- 
 ural laws, of the material world, of the processes of nature, 
 of medicine, sciences and arts of which they knew little or 
 nothing, and have opened distant markets for their peculiar 
 products. Though the destructive agencies excite fear and 
 distrust, the peaceful influences induce friendships. Combi- 
 
98o EVOLUTION OF GOVERNMENTS AND LAWS 
 
 nations are formed for the exchange of products and to gain 
 mutual benefits through which the bonds of confidence stead- 
 ily gain strength. The dark cold visage of the foreign de- 
 stroyer changes to light and warmth, and the "foreign devil" 
 is transformed into a delightful friend. No people can now 
 live in complete isolation. The advantages flowing from the 
 interchange of products are sufficient to induce the merchants 
 to transport commodities between the most distant lands. 
 Each nation has dealings with many or all others, and it has 
 become necessary to have agreements as to the rights and 
 privileges which the people of one country will be accorded 
 in another. These agreements are put in the form of treaties 
 which rest on the good faith of the parties for enforcement. 
 A breach of one of them may occasion war between the 
 parties, but war leads only to another treaty. While there 
 are treaties to which several nations are parties, the general 
 situation is one of separate treaties by each nation with each 
 other one, all dependent on good faith and \^oluntary compli- 
 ance except as one party may be able to enforce its demands, 
 right or wrong, by superior force. A general agreement to 
 submit all questions arising under treaties or otherwise be- 
 I tween nations to impartial arbitration is seen to be the next 
 \ great forward stride in the march of civilization, and the 
 j logical culmination of governmental combination. The long 
 list of separate treaties is a modern product, nothing similar 
 having been possible in ancient times. 
 
 The walls, canals and temples of Babylon and China evi- 
 dence great combination of effort for common ends ; the walls 
 for protection; the canals for communication and water sup- 
 plies, and the temples for religious rites, all tending to security 
 and comfort for the people. The great pyramids of Egypt 
 prove a like combination of effort, but apparently designed 
 only for the gratification of kingly pride. These combina- 
 tions were under despotic domination. Modern military and 
 naval combinations partake of the despotic character of all 
 things military and of necessity are made by the national 
 governments.. The folly, the wickedness of it all has been 
 freely discussed by representatives of the nations in the Hague 
 
GENERALIZATIONS 981 
 
 conferences, and the inherent savagery of war has been con- 
 demned in whole and in each of its particulars, but the bonds 
 of interest and of good will between people whose ancestors 
 have fought and killed each other throughout all times past 
 are not yet sufficiently strong to inspire general confidence. 
 The task of making them so is being performed by private 
 and quasi-public agencies and by indirection more certainly 
 than by open advocacy. America's settlement shows the dif- 
 ference in potency of moral and immoral combinations and 
 enterprises. The conquests of the rich and civilized countries 
 of Mexico and Peru by the Spaniards were military. The 
 purpose was to rob the natives of their gold and silver, with 
 which the conquerors were dazzled. Gunpowder and steel 
 were more potent than the primitive arms of the natives, but 
 they merely wrought destruction. No bond of sympathy was 
 established between conquerors and conquered, and there was 
 no thought of building up continuing industries for mutual 
 benefit. The robbers carried away booty after destroying 
 many useful structures built by the natives. Conquest meant 
 desolation. The settlers of North America also sought gains, 
 and the charters granted the colonists reserved for the British 
 crown a share of the gold and silver to be mined, but the 
 savages knew nothing of gold or silver and the mines were 
 far from the regions settled. To gain profits it was necessary 
 to combine for the production of useful things. Robbery and 
 destruction offered no rewards but the uncultivated land. The 
 inception of the settlements was by parties organized to 
 come across the ocean in ship loads and take possession of 
 the country. Scattered settlements near the coast struggled 
 to produce from the earth means of subsistence. In time 
 their products attracted traders and slowly at first, but with 
 increasing strength, agriculture, trade. and then manufactures 
 were developed. The first settlers worked mainly in separate 
 families and small groups, but with a constant and growing 
 appreciation of the advantages of mutual help and concert of 
 action. Self-reliance, inventive genius and capacity for adapt- 
 ing means to ends have been the well marked characteristics 
 of the European settlers of North America, and these have 
 
982 EVOLUTION OF GOVERNMEiNTS AND LAWS 
 
 produced a greater variety of private combinations to do 
 useful things than have been formed in any other part of the 
 world. Contemporaneously with the settlement of America 
 the nations of Western Europe, at first more especially the 
 Dutch and British, organized shipping and trading companies 
 in great number. The French, Portuguese, Spaniards and 
 Scandinavians followed in similar lines. The discovery of 
 America was soon followed by the discovery of the other un- 
 known regions. The sea was a great highway, open to all 
 adventurers, and by it every distant shore could be reached by 
 those having a suitable ship. The romantic and incredible 
 tales told by Marco Polo of the wealth of the east were veri- 
 fied, and Europeans sought out the coveted products of the 
 orient. 
 
 Inventive genius has had much to do in shaping modern 
 private combinations. The invention of printing aided greatly 
 in spreading information concerning distant lands and people, 
 but did not at once occasion any great organization for gath- 
 ering and distributing information. Now press and news 
 associations are world wide, and the educational influences of 
 the published reports of the doings and sayings of people in 
 all parts of the earth are the most potent and far-reaching of 
 all in breaking down the barriers of prejudice and distrust. 
 The work of the types and presses is dependent for its effi- 
 ciency on a multitude of ancillary inventions. The paper 
 used requires great mills and paper companies and multitudes 
 of laborers to convert forests into paper. The manufacture 
 of printing presses is itself a great industry, and the perfec- 
 tion of those on which the great dailies are printed has in- 
 volved a multitude of inventions of mechanical devices which 
 take the place of human hands and bring forth with marve- 
 lous speed and perfection the story of a day's doings. The 
 efficiency of the news-gathering and distributing agencies is 
 dependent on still other great inventions and combinations 
 furnishing the facilities. The discovery of the methods of 
 inducing, conducting and breaking currents of electricity gives 
 us the telegraph, telephone and other facilities for the rapid 
 transmission of messages. To use these a network of wires 
 
GENERALIZATIONS 983 
 
 Spreads over the land and cables across the seas. The wire- 
 less waves are projected through the air from towers, caught 
 up far away and interpreted. A perfect understanding by 
 each operator of the work of the others is essential to the 
 use of these inventions. Combinations are formed which act 
 as carriers of information and on these the press and public 
 depend for the transmission of the news to be printed. These 
 combinations are public in some countries and private in oth- 
 ers, but all work in concert in the conveyance of news. News- 
 papers and periodicals having been printed the publishers and 
 the public are dependent on another great organization, the 
 post office, for transmission and delivery to the readers. Some 
 falsehood and some malice find expression in these publica- 
 tions, and it necessarily results that their influence is some- 
 times evil, but this is exceptional. The general purpose of 
 the press the world over is to ascertain and publish the truth, 
 expose error and falsehood and promote human welfare. So 
 doing it leads the march of civilization. To the types and 
 presses we are also indebted for the crystalization of accumu- 
 lated knowledge in the form of books. Educational institu- 
 tions whose mission it is to disseminate knowledge and 
 strengthen mental processes are mainly dependent on books 
 for the principles they teach. Here again we meet a great 
 chain of combinations working together for the elevation of 
 humanity and the promotion of peace on earth and good will 
 to men. Science is truth. Mathematical science is demon- 
 strable truth from which errors may be certainly eliminated. 
 Other sciences admit of more or less approximation to abso- 
 lute certainty. Back of the preparation of books are investi- 
 gators working singly or in combinations according to the 
 nature of the investigation. Great compilations like the 
 encyclopedias require the work of specialists in many lines 
 and a large fund to defray the expense. The barriers which 
 formerly prevented the utilization of the learning of alien 
 people have been measurably removed by interpreters, and the 
 literary and philosophical treasures so long concealed in the 
 hieroglyphics of the Egyptians, the cuneiform characters of 
 the Babylonians, the Sanskrit and the Chinese writings, are 
 
984 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 now available to students. The great universities perform 
 the double service of bringing together natives of all coun- 
 tries to be taught the same truths and instructing in all lan- 
 guages. The translation and pubHcation of the sacred books 
 of the various religions afford a chance for comparison of 
 them and lead to the rejection of the palpable falsehoods and 
 better appreciation of their moral beauties. Manifestly truth 
 v^ill bear every test and alone has divine sanction. No mat- 
 ter v^hat the field of study one may be sure of divine sanction 
 of his conclusions if he has found the truth, and may also 
 safely reject palpable falsehood, no matter where or how it is 
 written or asserted. Modern methods of investigation lead 
 toward the overthrow of all false theories of the right of 
 man to rule his fellows, and of all false claims of knowledge 
 of the Infinite and special commission to represent and speak 
 for the Deity. All truth-tellers speak for him in the truths 
 they utter. All else is imposture. Educational influences 
 tending to mutual understanding and concert of action among 
 men are not confined to the schools and products of the print- 
 ing presses. Every combination to produce useful things or 
 perform beneficial services teaches a practical lesson of com- 
 mon brotherhood. 
 
 The railroad company may perhaps be singled out as the 
 most advanced type of modern business combination, exhibit- 
 ing some evils and injustices, but withal a most potent edu- 
 cator and promoter of good will. To bring the physical 
 property into being some combine their capital to pay for 
 land, materials, labor and equipment, and become the stock 
 and bond holders of the corporation, while others in greater 
 numbers combine their labors in the construction of the road- 
 way, buildings and rolling stock. As the physical property 
 comes into being it is turned over to an operating organiza- 
 tion requiring great specialization of training and duties. 
 Office men, track men, shop men, yard men and train men 
 must each and all work in concert for the accomplishment of 
 the general purposes of transportation and with due regard 
 for the safety of each other, of the traveling public, of those 
 on and about the line of road and of the property entrusted 
 
GENERALIZATIONS 985 
 
 for transportation. Here the duty of man to his fellow man 
 and full responsibility for the welfare of others finds most 
 ample recognition. The traveler enters the car, sits in com- 
 fort, goes to bed, sleeps, wakes in the morning, dresses, eats, 
 visits with his fellow passengers or reads as his inclination 
 moves him, in confident reliance on the vigilance of all whose 
 duty it is to provide for his safety and comfort and carry him 
 to his destination. The self-sacrificing devotion of train men 
 to duty is proverbial and exhibitions of it hardly excite notice. 
 Engineers, firemen, brakemen and conductors sacrifice their 
 own lives to save those for whose safety they are responsible. 
 Lines of railroad are arteries along which the pulsations of 
 human life flow, and the attendant telegraphs and telephones 
 are the nerves of sensation and motion. The intermingling 
 of distant people on the trains, going to and leaving them, 
 steadily tends to knowledge of each other, sympathy and good 
 understanding. Railroad, steamboat and telegraph lines now 
 connect all countries more or less directly with each other. 
 In some countries the railroads and telegraphs are owned by 
 •the governments, while in others they are the property of 
 combinations of private persons, often including citizens of 
 several countries. War interferes with their normal business 
 operations, and usually results in* the destruction of more or 
 less of the property. While a navy may be employed to pro- 
 tect a merchant marine and an army to protect a railroad, the 
 commerce of the world has outgrown such a system of pro- 
 tection. It demands the protection of good will. Mutual 
 interest and business arrangements between those connected 
 with and using any line of transportation are usually the only 
 protection needed, except as resort to the courts becomes 
 necessary at times. 
 
 Besides the transportation companies there are numberless 
 trading, manufacturing, mining, insurance, benevolent and 
 religious organizations formed in one country and operating 
 in another, or composed of citizens of both that bind by mu- 
 tual interest or bring alien people into sympathy by personal 
 contact. It is not so much through the propagation of par- 
 ticular doctrines as by the establishment of common interests 
 
986 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 and personal friendships that progress is made toward the 
 recognition of universal brotherhood. Tornadoes, floods and 
 famines in distant lands become the concern of good people 
 everywhere and aid in disaster is extended merely because 
 the sufferers are human. Voluntary private insurance com- 
 panies undertaken with a view to gaining profits by the col- 
 lection of premiums in excess of the risks incurred now have 
 to compete with mutual companies that merely distribute the 
 burdens of losses among the policyholders on an equitable 
 basis. 
 
 Manufacturing, mining, banking and trading companies in 
 endless variety, ranging in size all the way from a few co- 
 workers with little capital to such a gigantic combination as 
 the United States Steel Corporation with its capitalization of 
 nearly a billion and a half and its great army of employees 
 have been organized and extend their operations according to 
 their means, purposes and abilities to a few or many people, 
 to near neighbors only or to the most remote foreign coun- 
 tries. The influence of the large combinations tends gener- 
 ally to the promotion of good understanding and friendly 
 relations between distant people. The evil influences incident 
 to them arise mainly from monopoly or attempted monopoly, 
 strife with competitors and oppression of dependents. It is 
 through combinations of such kinds that most modern exotic 
 fortunes have been acquired, often by more or less immoral 
 methods. It is also through them that the most oppressive 
 use is made of the power of wealth. The lavish expenditures 
 of some multimillionaire bond and stockholders contrast un- 
 pleasantly with the penury and privation of some of the 
 operatives. But the fact of most profound significance is that 
 these are combinations to produce things or perform services 
 beneficial to mankind. The owners and managers may re- 
 ceive far too great rewards for the services they render and 
 operatives be underpaid, but whatever either of them gets 
 comes as a result of useful, not harmful, activities. The 
 gains of robbers and pirates are losses to others, but the 
 gains of those engaged in useful activities are. not necessarily 
 the losses of anybody, and ordinarily are attended with cor- 
 
GENERALIZATIONS 987 
 
 responding gains to those with whom they deal. Viewed as 
 a whole in their relations to society such combinations are 
 moral and highly beneficial. They lead mankind along many 
 peaceful paths to rich fields where great harvests are gath- 
 ered for the general good. The policy of modern enlightened 
 nations is to encourage such combinations. Despotism and 
 theocracy usually fear them, but free people need only to 
 curb and eliminate their injustices. These arise, i. from the 
 corrupting influence exerted on the governments ; 2. from the 
 frauds of promoters who secure stocks, bonds and privileges 
 without just compensation through relations of trust and 
 confidence; 3. inordinate profits gained through monopoly; 
 4. inordinate compensation to the few managers; 5. inade- 
 quate compensation to the many dependent workers; 6. dis- 
 regard of the health and safety of employees ; 7. disregard of 
 the rights of the general public. 
 
 The representative of a great corporation, like the ancient 
 courtier, diligently cultivates the acquaintance of all entrusted 
 with power to aid or injure it, fawns, flatters and corrupts. 
 Neither executive, legislative or judicial oflicers are exempt 
 from his attentions. Unmerited advantages are sought and 
 often obtained by immoral methods. Corporate franchises 
 and privileges come only frofn governmental sources. It is 
 necessary that lawful purposes and needs of corporations be 
 made known to all the governmental agencies that deal with 
 them, and for this purpose they must have representation. 
 There is little danger from influences exercised openly. The 
 private conferences and close associations for undisclosed 
 purposes are most dangerous. Corporate abuses are all sub- 
 ject to correction by the sovereign power. 
 
 The first great change in governmental policy with refer- 
 ence to corporations in the United States was in prohibiting^ 
 special charters and providing for their organization under 
 general laws. Corporate entity may now be obtained as a 
 matter of right instead of special favor. The whole field is 
 open for corporate competition and secure monopolies can no 
 longer be obtained through special charters. Legislatures 
 are relieved from the corrupting influences attending appli- 
 
988 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 cations for them. The problem of establishing justice be- 
 tween men is now complicated in many ways and simplitied in 
 others by corporate organizations. In its dealings with the 
 outside public it is treated as a unit and may be restrained and 
 regulated as may be found necessary for the general welfare. 
 Many laws have been passed requiring statements at intervals 
 of the operations and financial condition of various classes 
 of corporations to be used as a basis for protection against 
 fraud, the abuse of corporate powers and unreasonable 
 exactions by public service corporations. Important govern- 
 mental agencies have been established with supervisory pow- 
 ers over certain classes of corporations. In the United States 
 national banks are supervised by the Comptroller of the Cur- 
 rency and state banks by state officers. The charges and 
 operations of carriers engaged in interestate commerce are 
 subject to substantial control by the Interstate Commerce 
 Commission, and intrastate traffic by like commissions in 
 many of the states. Insurance companies are inspected, their 
 solvency determined and charges and dealings regulated by 
 commissioners or other officers with like powers in the states. 
 Recent legislation recognizes and enforces the duty of em- 
 ployers to provide for the health and safety of their em- 
 ployees, and bear some of the pecuniary loss resulting to 
 them and their families from accidents in the service. Some 
 corporations make provision for pensioning their superan- 
 nuated servants. 
 
 Great combinations force on us more full and careful con- 
 sideration of the relations of man to his fellows. The duty 
 to care for the welfare of others is being more and more per- 
 ceived and comprehended, and the Deity is being exonerated 
 from the charge of visiting poverty and suffering on the. 
 multitude and wealth and satiety on the few. It is becorning 
 apparent that the poverty and suffering with which the world 
 is filled are avoidable and mainly due to human pride, hatred, 
 malice, indolence, waste, ignorance and injustice, not to divine 
 wrath or caprice, which are mythical false attributes of the 
 Deity. Many potent modern influences are tending to the 
 elimination of these evils. Governments have assumed the 
 
GENERALIZATIONS 989 
 
 function of educating the young, and now expend vast sums 
 to remove the ignorance and creduhty which formerly af- 
 forded favorable conditions for the assertions of false claims 
 to power and privilege. It is found that the strength and 
 efficiency of a just government is greatly promoted by the 
 general diffusion of knowledge. Though wars still devastate 
 parts of the earth, people are learning the inherent vice and 
 immorality of them. National duels are seen to have no bet- 
 ter basis in morals than private duels, which the laws of civi- 
 lized countries now condemn. Murders, robberies and crimes 
 of all kinds are still committed, but it is now becoming ap- 
 parent that prevention of the causes of crime is better than 
 punishment of criminals. Many organizations have recently 
 been formed to promote the judicial settlement of interna- 
 tional disputes and thereby relieve statesmen from any ap- 
 parent necessity for plunging nations into wholesale crime. 
 Other organizations are seeking the causes of crime and how 
 it may be avoided and eliminated. All these deal with the 
 complicated relations of men to each other and the human 
 combinations which impel to war and crime. The criminal is 
 no longer looked on as a monster from without the pale of 
 human fellowship, but as an unfortunate who requires help 
 and discipline to bring him to observe just relations with his 
 fellows. A fundamental error in the teachings of the Code 
 of. Manu lies in the doctrine that moral perfection may be 
 gained by solitary abstraction, overlooking the impossibility 
 of severing the bonds which bind man to man, and the fact 
 that the great field of the moral law is the field of human 
 relations one with others. 
 
 The good and evil inhering in business combinations are 
 similar to that in the social relations of private persons. 
 Mutual help, kindness and good will are the vivifying, up- 
 building and uplifting forces, while strife, hatred and malice 
 are destructive in their tendencies. Competition and rivalry 
 are not necessarily harmful, but if merely manifestations of 
 effort to excel are highly beneficial. But immorality akin to 
 that of war often attends the use of the power of strong 
 corporations as well as that of strong nations. Men holding 
 
990 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 a majority of the stock sometimes use their power to ruin 
 the holders of the minority of it. The whole force of the 
 governing body of the corporation may be used to oppress em- 
 ployees, to ruin competitors, to unjustly favor one customer 
 or ruin another, or to wrong all with whom it has dealings. 
 To correct these evils it is not necessary to destroy the useful 
 combination, but only to compel the men who direct its activi- 
 ties to desist from vicious practices. Moral qualities are 
 primarily personal though a corporation may acquire a repu- 
 tation for moral character by steady adherence through all 
 its agencies to just dealings, but if it follows vicious methods 
 it is the men who direct its affairs who are guilty and should 
 be brought to account rather than the soulless corporate 
 entity. A fine assessed against the corporation punishes the 
 innocent equally with the guilty stockholder. 
 
 Combination tends to unity of purpose, and unity of the 
 overruling power throughout the universe is the most sublime 
 conception of which the human mind is capable. It is axio- 
 matic that this unity is moral and that all natural laws are 
 moral, for the test of morality is accordance with the law of 
 the Supreme Intelligence. All combinations, all governments 
 and all human laws should be framed and used to induce the 
 people to know and obey the unchanging principles of the 
 moral law. The infant must accept the instruction and obey 
 the commands of its parents because they have superior 
 knowledge and power. The parent must learn and obey the 
 public law, because it expresses the sovereign will and is sanc- 
 tioned by the public force. Officers, agents and employees of 
 a great corporation must study and obey its by-laws, for they 
 express the corporate will and are enforced by it. The cor- 
 poration itself is the mere creature of the public law, and its 
 by-laws, rules and regulations are valid only so far as they 
 accord with the public law. But the public law reaches no 
 farther than the national boundary. No nation can legislate 
 for another, or for the great broad oceans. The rules that 
 have been evolved and enforced are local and temporary, af- 
 fecting a limited number of people and only so long as thev 
 are sanctioned by the dominant force. International law is 
 
GENERALIZATIONS 991 
 
 customary law based on the more or less generally accepted 
 customs of nations, but it lacks the sanction of a superior 
 force to compel observance of it. In the autocratic govern- 
 ment the ruler is accountable to no earthly power, and the 
 limited monarch is shorn of power rather than subject to 
 discipline. In popular governments all who use the public 
 force are accountable for their conduct to the people for whom 
 they are authorized to act. Progress in the science of gov- 
 ernment means progress in enforcing the observance of law 
 by those entrusted with authority more than by those under 
 them. Progress in the formulation of public law calls for 
 the formulation and acceptance of just rules applicable to 
 nations and people the world over, superior to and binding 
 on rulers and leaders by whatever titles they may be called 
 as well as on the subjects of all nations. Restraint of the 
 conduct of the private citizen, though sometimes necessary, is 
 exceptional, but restraint of those entrusted with great power 
 must be constantly operative. The most prevalent error in 
 reasoning on the needs and purposes of government is based 
 on the assumption that the great multitude of the poor need 
 constant surveillance and repression. The greater need and 
 greater difficulty everywhere and under all forms of govern- 
 ment is to curb the dominant elements, restrain their rapacity 
 and amend the rules they have caused to be promulgated as 
 law through which they repeal the moral law of mutuality of 
 service and give to the crafty drones the honey gathered by 
 the workers. 
 
 The mixture of good and evil in private combinations is 
 similar to that in public ones. Charters, by-laws and rules 
 governing the apportionment of duties and the distribution 
 of rewards are mainly the work of the few who hold positions 
 of advantage and profit most largely by them. The necessity 
 for such rewards for intelligent direction, skill, energy and 
 devotion to the common purpose as are essential to efficiency 
 is not to be overlooked : nor does it accord with either sound 
 morality or expediency to wholly relieve sloth, inefficiency and 
 wastefulness from the privations and hardships nature im- 
 poses for them. All governments are combinations of men, 
 
992 EVOLUTION OF GOVERNMENTS AND LAWS 
 
 the best to promote the general welfare, the worst to gratify 
 the rulers. All laws are rules of conduct, of right or of 
 privilege, sanctioned by the state and applicable to some or 
 all its people. Of these also the best promote the general 
 welfare and the worst gratify some and harm the rest. The 
 unnumbered ages of isolated development of diverse systems 
 are past and the time for comparison, selection of the good, 
 elimination of the bad and combined effort to promote the 
 general welfare of the whole human race has arrived. 
 
 The primary combination made necessary by the Creator 
 as a condition to the perpetuation of the human race is the 
 family. Union of the male and female may be brief and im- 
 perfect or life long and complete. Children may have the 
 imperfect care of a mother only or the best that both parents 
 can give. The love between the pair may be sensual and 
 selfish or pure and self-denying. Every grade and shade of 
 the good and ill in human life finds expression in the family, 
 and the happiness of its members is measured by the love 
 for and devotion to each other manifested by all the mem- 
 bers of the household. The principles applicable to the house- 
 hold apply to every combination of human beings from the 
 family to the great family of nations, the whole human fam- 
 ily. Love for all humanity, including strangers and aliens of 
 all races, though necessarily ideal and abstract, is yet the very 
 heart and life of all that is good in religion and philosophy. 
 The perfect conception of it cannot be given detailed expres- 
 sion in human laws, because it is too ethereal either for for- 
 mulation in words or enforcement by officials, yet it is a 
 touchstone by which all forms of combination and all rules 
 of conduct may be tested. Every approach to it conduces to 
 human happiness, every departure from it to suffering. Ab- 
 solute perfection of conduct and relations is not to be found 
 in any household, but very delightful approximations to it 
 give perennial comfort and much unalloyed happiness to the 
 best families everywhere. Constant approximation in the re- 
 lations of strangers to each other to such as prevail within 
 the families is foreshadowed by the march of civilization. 
 The multiplication and extension of combinations of all kinds. 
 
GENERALIZATIONS 993 
 
 public and private, furnish a physical ba-sis for and stimulate 
 the growth of nerves of sympathy that could not exist be- 
 tween people isolated from each other. In every great com- 
 bination, public or private, the task of greatest importance 
 and difficulty is to rule the ruler, judge the judge and lead 
 the leader. Acts classed and punished as crimes are each 
 the separate work of one person or a few confederates. The 
 importance of the sum total of them is magnified by the 
 detailed narratives of so many similar atrocities. Whole- 
 sale crimes perpetrated in the conflicts of nations and by 
 great combinations of men and wholesale injustice corre- 
 sponding to great numbers of continuing crimes are charge- 
 able to the men who administer the governments or direct the 
 combinations or to the laws. 
 
APPENDIX 
 
 Code of Hammurabi of Babylon 
 
 [The following extracts are taken by permission from the excellent 
 translation of Professor Harper published by the University of Chicago 
 Press.] 
 
 The code of Hammurabi, engraved on a block of black diorite in 
 the ancient cuneiform characters of the Babylonians, discovered at 
 Susa by a French expedition under the direction of M. De Morgan in 
 1901-2 is the oldest body of written laws known to us. It is assigned 
 to about 2250 B.C. Hammurabi was a military despot claiming to 
 rule by authority of the gods Anu, Bel and Morduk. In the preface 
 to his code, while he bases his authority on the will of the gods, he 
 claims full credit and assumes full responsibility for all his works. 
 He does not claim merely to be the instrument for the transmission 
 of laws framed by a god, but promulgates the code as his own work, 
 written in 282 sections. The despotic spirit in which it was framed is 
 well indicated by the first section, which provides that, if a man charge 
 another with a capital crime and cannot prove it, the accuser shall 
 be put to death. 
 
 The second section exhibits the superstitions prevailing. One charged 
 with sorcery must jump into the river and, if drowned his accuser 
 might take his house; but if he came out unharmed his accuser should 
 be put to death and the accused take his house. To bear false witness 
 in a capital case was a capital crime, and in other cases subjected the 
 guilty party to a penalty equal to that imposed for the offense charged. 
 
 Sec. 5. "If a judge pronounce a judgment, render a decision, deliver 
 a verdict duly signed and sealed and afterward alter his judgment, they 
 shall call that judge to account for the alteration of the judgment 
 which he had pronounced, and he shall pay twelve-fold the penalty 
 which was in said judgment; and, in the assembly, they shall expel 
 him from his seat of judgment, and he shall not return, and with the 
 judges in a case he shall not take his seat." 
 
 The death penalty was imposed for stealing the property of a temple 
 or palace or receiving it from the thief; for purchasing slaves or 
 other personal property from the son or servant of the owner without 
 witnesses or contracts. A theft of an ox, sheep, ass, pig or boat, from 
 a temple or palace might be commuted by payment of thirty fold; if 
 from a freeman of tenfold, but if the thief was unable to pay he was 
 liable to be put to death. 
 
 994 
 
CODE OF HAMMURABI 995 
 
 Sections 9 to 13 relate to claims for lost property and require a trial 
 before the judges by the testimony of witnesses. The lost property 
 was restored to the owner, the seller of it to the one found in possession 
 was put to death as a thief, and the purchaser was repaid his purchase 
 money from his estate. If the possessor failed to prove a purchase 
 from another, he was put to death as a thief. If the claimant failed 
 to prove title and identity of his property, he was put to death as a 
 calumniator. 
 
 Death was also inflicted for stealing a minor son of another, aiding 
 a slave to escape from the city gate, harboring an escaped slave and 
 refusing to produce him, making a breach in a house, practicing brig- 
 andage, taking furniture from a burning house; on an officer sent 
 on an errand of the king for hiring a substitute to go in his stead; on a 
 governor for taking the property of an officer, letting an office for 
 hire, presenting an officer in judgment to a man of influence or taking 
 the kings gift from an officer, and on any man for dereiving a brander 
 and causing him to brand a slave with the sign that he could not be 
 sold, or for building a house so that it collapsed and caused the death 
 of the owner. 
 
 To one seizing a fugitive slave and returning him to the owner the 
 latter was required to pay two shekels of silver. 
 
 For robbery or murder by a brigand who escaped, the city and gov- 
 ernor of the province where it was committed were required to pay 
 the amount of the loss, itemized and sworn to by the loser, and a 
 mana of silver to the heirs of the person killed. 
 
 If an officer in a garrison of the king was captured his field and 
 garden were given to his son, if able to conduct the business, if too 
 young one-third was given to the mother who was required to rear him, 
 if given to a stranger and the officer returned, they were to be restored 
 to him. If the officer from the beginning neglected his field, garden 
 and house, and another took and conducted the business for three 
 years, his right to continue to do so was established, but by one 
 years neglect the right was not forfeited. If a merchant ransomed 
 a captured officer, the officer was required to pay the ransom, if he 
 had sufficient in his house, if not it should be paid from the temple of 
 his city, and if there was not enough in the temple the palace should 
 pay it. His field, garden or house could not be taken for his ransom. 
 
 Sec. 37. "If a man purchase the field, garden or house of an officer, 
 constable or tax-gatherer, his deed tablet shall be broken (canceled) 
 and he shall forfeit his money and he shall return the field, garden 
 or house to its owner." The officer was also forbidden to deed these 
 to his wife or assign them for debt, that is such as he held by virtue 
 of his office, but lands bought from others he might assign for debt. 
 Sec. 40. "A woman, merchant or other property-holder may sell 
 
996 .\PPENDIX 
 
 field, garden or house. The purchaser shall conduct the business of 
 the field, garden or house which he has purchased." 
 
 If a man rented a field and failed to raise a crop he must pay on 
 the basis of adjacent fields and must break up the soil with hoes, harrow 
 and return it to the owner. If he rented an unreclaimed field for three 
 years and neglected it, the fourth year he must break it up and pay a 
 prescribed rent in grain. Where crop rent was paid and afterward a 
 flood carried away the remainder, it was the tenants loss, but if the 
 loss occurred before payment, the remainder was divided in the agreed 
 proportion. A tenant might assign his lease without consent of the 
 landlord. Loss of his crop by flood or drouth entitled a debtor to an 
 extension of time for a year and an abatement of a years interest. 
 The use of land might be given as security for a loan and the land 
 tilled by the lender, or a growing crop might be pledged. In either case 
 the creditor took only his loan and interest. 
 
 Sec. 53. "If a man neglect to strengthen his dyke and do not 
 strengthen it, and a break be made in his dyke and the water carry 
 away the farm-land, the man in whose dyke the break has been made 
 shall restore the grain which he has damaged." 
 
 Sec. 54. "If he be not able to restore the grain, they shall sell him- 
 arid his goods, and the farmers whose grain the water has carried away 
 shall share (the results of the sale.)" 
 
 Sec. 55. "If a man open his canal for irrigation and neglect it and 
 the water carry away an adjacent field, he shall measure out grain on the 
 basis of the adjacent fields." 
 
 If a shepherd pastured his sheep in the field of another without 
 agreement, he must pay two Gur of grain per Gan of land, and if he 
 turned them in against the will of the owner, he must pay six Gur per 
 Gan. For cutting down a tree in another's orchard one must pay half 
 a mana of silver. If a field was let, to- a gardener for an orchard, the 
 fifth year the gardener and owner shared equally of the fruit. 
 
 Sec. 61. "If the gardener do not plant the whole field, but leave at 
 space waste, they shall assign the waste space to his portion." 
 
 If the tenant failed to plant the orchard but raised grain, he must 
 pay rent. Where an orchard was given to a gardener to manage, the 
 owner took two-thirds and the gardener one-third of the fruit. Where 
 a tenant or a gardener neglected his work, he must pay rent on the 
 basis of adjacent fields or orchards. Sections 66 to 99 inclusive are- 
 missing, having been cut off the stone at some unknown time prior to- 
 its recent discovery. Sections relating to dealings between merchants 
 and their agents follow the missing portion. 
 
 Sec. 103. "If, when he goes on a journey, an enemy rob him of 
 whatever he was carrying, the agent shall take an oath in the name- 
 of god and go free." 
 
 Sec. 104. "If a merchant give to an agent grain, wool, oil or goods 
 of any kind with which to trade, the agent shall write down the value 
 
CODE OF HAMMURABI 997 
 
 and return (the money) to the merchant. The agent shall take a 
 sealed receipt for the money which he gives to the merchant." 
 
 Sec. 105. "If the agent be careless and do not take a receipt for the 
 money which he has given to the merchant, the money not receipted 
 for shall not be placed to his account." 
 
 Sec. 108. "If a wine-seller do not receive grain as the price of drink, 
 but if she receive money by the great stone, or make the measure for 
 drink smaller than the measure for corn, they shall call that wine- 
 seller to account, and they shall throw her into the water." 
 
 Sec. 109. "If outlaws collect in the house of a wine-seller, and she 
 do not arrest these outlaws and bring them to the palace, that wine-seller 
 shall be put to death." 
 
 Sec. no. '*If a priestess who is not living in a MAL. GE. A., open a 
 wine-shop or enter a wine-shop for a drink, they shall burn that woman." 
 
 If a carrier of goods failed to deliver them, he was liable to pay 
 five-fold for them. A creditor, who seized the grain of his debtor without 
 his consent, must return it iand lose his debt. If one seized another 
 for a debt he did not owe, he was required to pay one-third mana of 
 silver. If the creditor seized his debtor and he died in his house, 
 there was no penalty. 
 
 Sec. 116. "If the one seized die of abuse or neglect in the house 
 of him who seized him, the owner of the one seized shall call the 
 merchant to account; and if it be a man's son (that he seized) they 
 shall put his son to death; if it be a man's servant (that he seized) 
 he shall pay one-third mafia of silver and he shall forfeit whatever 
 amount he had lent." 
 
 Sec. 117. "If a man be in debt and sell his wife, son or daug^hter, 
 or bind them over to service, for three years they shall work in the 
 house of their purchaser or master; in the fourth year they shall be 
 given their freedom." 
 
 Sec. 118. "If he bind over to service a male or female slave, and 
 if the merchant transfer or sell such slave, there is no cause for 
 complaint." 
 
 Sec. 119. "If a man be in debt and he sell his maid servant who has 
 borne him children, the owner of the maid servant (i.e. the man in 
 debt) shall repay the money which the merchant paid (him), and he 
 shall ransom his maid servant." 
 
 The storage of grain and property for others was regulated and 
 return to the owner enforced with penalties for withholding it. If 
 the deposit was stolen the bailee must make good the loss. 
 
 Sec. 127. "If a man point the finger at a priestess of the wife of 
 another and cannot justify it, they shall drag that man before the judges 
 and they shall brand his forehead." 
 
 Sec. 128. "If a man take a wife and do not arrange with her the 
 (proper) contracts, that woman is not a (legal) wife." 
 
998 APPENDIX 
 
 Sec, 129. "If the wife of a man be taken in lying with another man, 
 they shall bind them and throw them into the water. If the husband 
 of the woman would save his wife, or if the king would save his male 
 servant (-he may)." 
 
 Sec. 130, "If a man force the (bethrothed) wife of another, who has 
 not known a male and is living in her father's house, and he lie in her 
 bosom and they take him, that man shall be put to death and that 
 Woman shall go free." 
 
 Sec. 131. "If a man accuse his wife and she has not been taken 
 in lying with another man, she shall take an oath in the name of God 
 and she shall return to her house." 
 
 Sec. 132. "If the finger has been pointed at the wife of a man, and 
 she has not been taken in lying with another man, for her husband's 
 sake she shall throw herself into the river." 
 
 If a man was captured his wife must remain in his house if there 
 were provisions, and if she went to another's house she must be thrown 
 into the water, but if there were no provisions she might go to another's 
 liouse, and if she bore children there and her husband returned she 
 should go to him and the children remain with their father. If a man 
 deserted his city his wife might go to another house and was not 
 required to return to him in case he came back. If a man put away 
 a wife or concubine who had borne him children, he must return her 
 'dowry and give her the income of field, garden and goods to bring 
 up her children, and, when they were grown, she might take a son's 
 ;part and marry the man of her choice. If a wife had not borne children, 
 the husband might put her away, but must give her her marriage settlement 
 and the portion she (brought from her father's house and, if there were 
 none, pay her one mana of silver for a divorce. 
 
 Sec. 141. "If the wife of a man, who is living in his house, set her 
 face to go out and play the part of a fool, neglect her house, belittle 
 her husband, they shall call her to account; if her husband say "I have 
 put her away," he shall let her go. On her departure nothing shall be 
 given to her for divorce. If her husband say, "I have not put her away," 
 her husband may take another woman. The first woman shall dwell 
 in the house of her husband as a maid servant." 
 
 Sec. 142. "If a woman hate her husband and say:" Thou shalt not 
 have me, "they shall inquire into her antecedents for her defects; and 
 if she has been a careful mistress and be without reproach and her 
 husband have been going about and greatly belittling her, that woman 
 has no blame. She shall receive her dowry and go to her father's house." 
 
 Sec. 143. "If she have not been a careful mistress, have gadded 
 about, have neglected her house and have belittled her husband, they 
 shall throw her into the water." 
 
 If a man's wife gave him a maid servant who bore him children, 
 he could not then take a concubine. If he had a wife who presented 
 
CODE OF HAMMURABI 999 
 
 him no children he might take a concubine, but she did not rank as a 
 wife. A maid servant, who had borne children to her master, could 
 not take rank with her mistress, but the mistress could not sell her. 
 She might be sold if she had not borne children. If the wife became 
 diseased, the husband might take another but could not put the first 
 away. He must maintain her, but if she chose to go she might and 
 take her dowry. 
 
 Sec. 150. "If a man give to his wife field, garden, house or goods, 
 and he deliver to her a, sealed deed, after (the death of) her husband, 
 her children cannot make claim against her. The mother after her 
 (death) may will to her child whom she loves, but to a brother she 
 may not." 
 
 If a husband contracted with a wife that she should not be holden 
 for his debts, creditors could not hold her for his debts, nor her 
 creditors hold her husband for hers. 
 
 Sec. 153. "If a woman bring about the death of her husband for 
 the sake of another man, they shall impale her." 
 
 Incest was punished with drowning, burning or a fine, according t6 
 the relation of the parties. If a man refused to consummate a marriage 
 he had contracted, he forfeited the presents he had made, and, if 
 after making a marriage settlement the bride's father refused to permit 
 the marriage, he forfeited double the amount of the presents. 
 
 On the death of the wife her dowry belonged to her children, but 
 if she had no children it went to her father's house, if he returned 
 to the husband the marriage settlement. 
 
 Sec. 165. "If a man present field, garden or house to his favorite 
 son and write for him a sealed deed; after the father dies when the 
 brothers divide, he shall take the present which the father gave him, 
 and over and above they shall divide the goods of the father's house 
 equally." 
 
 Sec. 166. "If a man take wives for his sons and do not take a wife 
 for his youngest son, after the father dies, when the brothers divide, 
 they shall give from the goods of the father's house to their youngest 
 brother, who has not taken a wife, money for a marriage settlement 
 in addition to his portion and they shall enable him to take a wife." 
 
 If a man's first wife died and he married a second and had children by 
 both, the children took the dowries of their respective mothers and 
 divided the goods of the father equally. 
 
 A father could not disinherit his son without cause nor for the first 
 offense, but for a second grave crime he might do so. If a man having 
 children by both his wife and maid servant called the children of the 
 latter "My children,"' on his death they inherited equally with the 
 children of the wife, otherwise they did not inherit, but the maid servant 
 and her children were free. The widow took the dowry, the gifts made 
 her by her husband and the use of his house for life. If the husband 
 
1000 APPENDIX 
 
 made her no gift she took her dowry and a portion of his goods equal 
 to that of a son. If she chose to remarry, she took her dowry only, 
 leaving the rest to the children. If she then had more children and 
 died, her dowry was divided among all her children, if she bore no 
 more her children by the first husband took the dowry. 
 
 If a slave married a free woman the children were free, and what- 
 ever they acquired after marriage was divided on the sl'ave's death, 
 one-half to the master and the other to the woman for her children. 
 A widow with minor children could not remarry without consent of the 
 judges, and, in case she was allowed to marry again, the judges re- 
 quired husband and wife to administer and preserve the estate and 
 rear the minors. Where a father gave to a daughter, who was a 
 priestess or devotee, a deed of gift, it was for life only, unless the 
 power to give it away after death was conferred by the deed. She 
 took the income for life and on her death it went to her brothers. 
 
 If the father did not give a dowry to his daughter, who was a bride 
 or devotee, she took a share of his goods equal to that of a son, which 
 on' her death passed to her brothers, except a Nu Par or priestess of 
 Marduk, who took only one-third a son's portion of his goods, but a 
 priestess of Marduk at her death might give to whomsoever she pleased. 
 
 If a father gave his daughter a dowry she did not share in his 
 goods, but if he failed to do so she was entitled to a dowry after his 
 death proportionate to his estate. 
 
 Sec. 185. "If a man take in his name a young child as a son and 
 rear -him, one may not bring claim for that adopted son." 
 
 If the adopted son was rebellious he might be returned to his father. 
 
 Sec. 188. "If an artisan take a son for adoption and teach him his 
 handicraft,* one may not bring claim for him." 
 
 Sec. 189. "If he do not teach him his handicraft, that adopted son 
 may return to his father's house'" 
 
 Sec. 191. "If a man who has taken a young child as a son and 
 reared him, establish his own house and acquire children, and set 
 his face to cut off the adopted son, that son shall not go his way. 
 The (father who reared him shall give to him of his goods one-third 
 the portion of a son and he shall go. He shall not give to him of 
 field, garden or house." 
 
 Sec. 192. "If the son of a NER.SE.GA, or the son of a devotee, 
 say to .his father who has reared him, or his mother who has reared 
 him: "My father thou art not," "My mother thou are not," they shall 
 cut out his tongue." 
 
 Sec. 193. "If the son of a NER.SE.GA. or the son of a devotee 
 identify his own father's house and hate the father who has reared 
 him and the mother who has reared him, and go back to his father's 
 house, they shall pluck out his eye." 
 
 Sec. 194. "If a man give his son to a nurse and that son die in 
 
CODE OF Hx\MMURABI looi 
 
 the hands of the nurse, and the nurse substitute another son without 
 the consent of his father or mother, they shall call her to account, 
 and because she has substituted another son without the cqnsent of 
 his father or mother, they shall cut off her breast." 
 
 Sec. 195. "If a son strike his father they shall cut off his fingers." 
 
 Sec. 196. "If a man destroy the eye of another man, they shall destroy 
 his eye." 
 
 Sec. 197. "If one break a man's bone, they shall break his bone." 
 
 Sec. 200, "If a man knock out a tooth of a man of his own rank, 
 they shall knock out his tooth." 
 
 For other kinds of assaults precuniary mulcts were imposed: for 
 striking a superior sixty strokes with an ox-tail whip, for striking a 
 man's son a slave was liable to have his ear cut off, for a blow in a 
 quarrel the aggressor was required to pay the doctor and if death ensued 
 half a mana of silver. 
 
 Sec. 209. "If a man strike a man's daughter and bring about a 
 miscarriage, he shall pay ten shekels of silver for her miscarriage." 
 
 Sec. 210. "If that woman die they shall put his daughter to death." 
 
 The people were divided into three ranks, styled in this translation 
 as men, freeman and slaves, and pecuniary mulcts for assaults and 
 offenses to the person were graded accordingly. For operating for 
 a wound and saving a man's life or opening an abcess and saving his 
 eye a physician was entitled to teti shekels of silver, for a freeman five, 
 and for a slave two. If by operation he caused a man's death or the 
 loss of his eye, his fingers were to be cut off, if the death of a slave 
 he must restore a slave of equal value. For setting a broken bone or 
 curing diseased bowels the physician was entitled to five shekels of 
 silver for a man, three for a freeman, and two for a slave. A veterinary 
 surgeon for saving the life of an ox or an ass was allowed one-sixth 
 of a shekel and if he caused its death was required to pay one-fourth 
 its value. 
 
 Sec. 226. "If a brander without the consent of the owner of the 
 slave, brand a slave with the sign that he cannot be sold, they shall 
 cut off the fingers of that brander." 
 
 The compensation of house builders was regulated according to the 
 size of the house. 
 
 Sec. 230. "If it cause the death of the son of the owner of the 
 house, they shall put to death a son of that builder." 
 
 Sec. 231. "If it cause the death of a slave of the owner of the 
 house, he shall give to the owner of the house a slave of equal value. 
 
 He must also restore the property destroyed. 
 
 The wages of boat builders were similarly regulated and they were 
 bound to make the boat seaworthy. A boatman entrusted' with a 
 cargo was liable for a loss caused by his negligence, and also for sinking 
 another boat. The hire of oxen and asses was regulated and the hirer 
 
1002 APPENDaX 
 
 was liable to the owner for death or injury to the animal resulting 
 from his neglect or abuse. 
 
 Sec. 250. "If a bull when passing through the street, gore a man 
 and bring about his death, this case has no penalty." 
 
 Sec. 251. "If a man's bull have been wont to gore and they have made 
 known to him his habit of goring, and he have not protected his horns 
 or have not tied him up, and that bull gore the son of a man and 
 bring about his death, he shall pay one-half mana of silver." 
 
 If a hired overseer of a farm stole seed or crops, his fingers were 
 to be cut off and he was liable to pay damages for his neglect. The 
 wages of boatmen, field laborers, herdsmen, artisans, brickmakers, tailors, 
 carpenters, masons and other hired men were regulated by the code, 
 and they were liable to pay for losses due to their negligence. 
 
 Sec. 282. "If a male slave say to his master: "Thou are not my 
 master," his master shall prove him to be his slave and shall cut off 
 his ear." 
 
 The character of this code accords with the despotic powers of its 
 author. Its penalties are cruel and in some cases unjust to the last 
 degree. The execution of a son or daughter for a crime of the father 
 against the son or daughter of another is shockingly barbarous. Maim- 
 ing as a punishment is both cruel and impolitic, as it reduces the use- 
 fulness of the culprit and tends to make him a confirmed criminal. It 
 will be noticed that this code deals with the rights and duties of the 
 subjects and is designed to punish crime, enforce the performance of 
 contracts and obligations, regulate marriages, divorces, the inheritance 
 of property and the wages of laborers. Although it mentions the temple 
 and palace it does not purport to regulate either the religious establishment 
 or the system of taxation. 
 
 LAWS OF THE XII TABLES OF ROME 
 
 The following summary of the Laws of the XII Tables is made 
 from the fragments put together by Mm. Carton and Rouille and pub- 
 lished in the Appendix to Cooper's Justinian. These fragments show 
 that Table I deals with procedure and from it we quote: 
 
 "I. Go immediately with the person who cites you before the judge, 
 
 II. If the person you cite refuses to go with you before the judge 
 take some that are present to be witnesses of it and you shall have a 
 right to compel him to appear. 
 
 III. If the person cited endeavors to escape from you or puts himself 
 into a posture of resistance you may seize his body. 
 
 IV. If the person prosecuted be old or infirm let him be carried in a 
 jumentum or open carriage. But if he refuse that, the prosecutor shall 
 not be obliged to provide him an Arcera or covered carriage. 
 
 V. But if the person cited find a surety let him go. 
 
TWELVE TABLES OF ROME 1003 
 
 VL Only a rich man shall be a surety for a rich man. But any 
 security shall be sufficient for a poor man. 
 
 VIL The judge shall give judgment according to the agreement made 
 between the parties by the way. 
 
 Vin. If the person cited has made no agreement with his adversary, 
 let the praetor hear the cause from sunrise till noon ; and let both 
 parties be present when it is heard, whether it be in the Forum or Comitium. 
 
 IX. Let the same praetor give judgment in the afternoon, though but 
 one of the parties be present. 
 
 X. Let no judgment be given after the going down of the sun. 
 XL (Provides for arbitration by consent). 
 
 XII. Whoever shall not be able to bring any witnesses to prove his 
 pretensions before the judge may go and make a clamour for three 
 days together before his adversary's house. 
 
 The second table deals with robberies and offenses against property, 
 and allows the killing of a robber who attacks in the night or with 
 arms in the day time. A robber taken in the fact is to be beaten with 
 rods and be the slave of the person robbed. If a slave commits a 
 robbery he is to be beaten and thrown headlong from the capitol. For 
 less aggravated offenses the judge might require payment to the in- 
 jured party of double damages, and in all cases the parties concerned 
 were permitted to settle the matter. 
 
 VII. "If one comes privately, by night and treads down another 
 man's field of corn or reaps his harvest, let him be hanged up and put 
 to death as a victim devoted to Ceres" (but if a child the Praetor 
 ordered him corrected). 
 
 Table III deals with debtor and creditor. 
 
 I. Let him who takes more than one per cent interest for money be 
 condemned to pay four times the sum lent. 
 
 II. When any person acknowledges a debt or is condemned to pay it, 
 the creditor shall give his debtor thirty days for the payment of it, 
 after which he shall cause him to be seized and brought before a judge. 
 
 III. If the debtor refuse to pay his debt and can find no security 
 his creditor may carry him home, and either tie him by the neck of 
 put irons upon his feet, provided the chain does not weigh above fifteen 
 pounds, but it may be lighter if he pleases. 
 
 IV. If the captive debtor will live at his own expense let him, if 
 not let him who keeps him in chains allow him a pound of meal a day 
 or more if he pleases. 
 
 V. The creditor may keep his debtor prisoner for sixty days. If in 
 this time the debtor does not find means to pay him, he that detains 
 him shall bring him out before the people three market days and proclaim 
 the sum of which he has been defrauded. 
 
 VI. If the debtor be insolvent to several creditors, let his body be cut 
 
I004 APPENDIX. . 
 
 in pieces on the third market day. It may be cut into more or fewer 
 pieces with impunity. Or if his creditors consent to it, let him be sold 
 to foreigners beyond the Tiber. 
 
 Table IV. relates to paternal rights. 
 
 I. Let the father have the power of life and death over his legitimate 
 children and let him sell them when he pleases. 
 
 II. But if the father has sold his son three times, let the son then 
 be out of the father's power. 
 
 III. If the father has a child born which is monstrously deformed 
 let him kill him immediately. 
 
 IV. Let not a son whose father has so far neglected his education 
 as not to teach him a trade be obliged to maintain his father in want, 
 otherwise let all sons be obliged to relieve their fathers. 
 
 V. Let not a bastard be obliged to work to maintain his father. 
 
 Table V. permits the making of wills and provides for the division of 
 estates among the heirs of intestates. 
 
 Table VI. as given is : 
 
 I. When a man conveys an estate to another let the terms of the 
 conveyance create the right. 
 
 II. If a slave, who was made free on condition of paying a certain 
 sum, be afterward sold, let him be set at liberty if he pay the person 
 who has bought him the sum agreed upon. 
 
 III. Let not any piece of merchandise, though sold and delivered, 
 belong to the buyer till he has paid for it. 
 
 IV. Let two years possession amount to a prescription for lands and 
 one for moveables. 
 
 V. In litigated cases the presumption shall always be on the side of 
 the .possessor, and in disputes about liberty or slavery the presumption 
 shall always be on the side of liberty. 
 
 Table VII relates to a number of wrongs and crimes and prescribes 
 punishment or compensation. For maliciously burning the house or corn 
 of another, or for false swearing the penalty of death is imposed, by 
 burning for the former and hurling from the capitol for the latter. 
 Parricides were to be sewed in a leather bag and thrown in the river. 
 One who kills a f reedman or uses magical words to hurt Kim or prepares 
 or gives him poison is to be punished as a homicide. 
 
 Table VIII relates to diverse matters and requires a space of two 
 and one-half feet between houses, roads to be eight feet wide and 
 allows a traveller to drive out on either side of a bad road. It permits 
 societies to make by-laws, provided they do not conflict with pul)lic law. 
 
 Table IX. declares among other things. 
 
 I. Let not privilege be granted to any person. 
 
CODE OF MANU 1005 
 
 III. It shall be a capital crime for a judge or arbitrator to take money 
 for passing judgment. 
 
 IV. Let all causes relating to the life liberty or rights of a Roman 
 citizen be tried only in comitm by centuries. 
 
 Table X. relates to funerals and ceremonies for the dead and prohibits 
 excessive outlay or display and excessive manifestations of sorrow. 
 
 Table XI. relates to public and private worship. 
 
 Table XII provides, 
 
 I. When a woman shall have cohabited with a man for a whole year 
 without having been three nights absent from him, let her be deemed 
 his wife. 
 
 II. If a man catches his wife in adultery or finds her drunk he may 
 with the consent of her relations punish her even with death. 
 
 III. When a man will put away his wife, the form of doing it shall 
 be by taking from her the keys of the house and giving her what she 
 brought. This shall be the manner of a divorce. 
 
 IV. A child born of a widow in the tenth month after the decease of 
 her husband shall be deemed legitimate. 
 
 V. It shall not be lawful for the patricians to intermarry with the 
 plebians." 
 
 MANAVA-DHARMA-SASTRA 
 Code of Manu 
 
 There is no more remarkable code of laws than that of Manu, re- 
 garded by the Hindoos as the son of Brahma and first of created beings. 
 The da-te of its compilation, in the form in which it is now preserved 
 in the Sanscrit characters, is uncertain. Sir William Jones estimated 
 it about 880 B.C. It is intensely religious in tone and requirements, 
 and is not merely a set of rules to be enforced by those who govern 
 the multitude, but imposes many severe restrictions on kings and their 
 officers and the priestly order. 
 
 Its leading peculiarity is that it divides the people into castes, assigns 
 to each certain duties and employments, prohibits other methods of gain- 
 ing subsistence and requires the education of the young as a civil and 
 religious duty. It prescribes forms of worship, sacrifices, religious and 
 domestic duties, the organization of governments and military forces, 
 rates of taxation, rules of property, of evidence and procedure in courts, 
 punishments for crime, penance and expiation for sins and transgressions, 
 and teaches the transmigration of the soul from form to form until 
 final beatitude is attained. In the original it is written in verse and is 
 divided into twelve chapters. In most parts the rules are so clearly and 
 concisely stated that nothing can be gained by attempting to summarize 
 or condense. Chapter I gives an account of the Creation. 
 
ioo6 APPENDIX 
 
 1. "Manu sat reclined, with his attention fixed on one object, the 
 Supreme God; when the divine Sages approached him, and, after mutual 
 salutations in due form, delivered the following address : 
 
 2. "Deign, sovereign ruler, to appraise us of the sacred laws in their 
 order, as they must be followed by all the four classes, and by each of 
 them, in their several degrees, together with the duties of every mixed 
 class ; 
 
 3. For thou, Lord, and thou only among mortals, knowest the true 
 sense, the first principle, and the prescribed ceremonies, of this universal^ 
 supernatural Veda, unlimited in extent and unqualified in authority. 
 
 4. "He whose powers were measureless, being thus requested by the 
 great Sages, whose thoughts were profound, saluted them with all rev- 
 erence, and gave them a comprehensive answer, saying : 'Be it heard !' 
 
 5. "This universe existed only in the first divine idea yet unexpanded,. 
 as if involved in darkness, imperceptible, undefinable, undiscoverable by 
 reason, and undiscoverable by revelation, as if it were wholly immersed 
 in sleep: 
 
 6. "Then the sole self-existing power, himself undiscerned but making 
 this world discernible, with five elements and other principles of nature,, 
 appeared with undiminished glory, expanding his idea, or dispelling the 
 gloom. 
 
 7. "He whom the mind alone can perceive, whose essence eludes the 
 external organs, who has no visible parts, who exist from eternity, even 
 He, the soul of all beings, whom no being can comprehend, shone forth 
 in person. 
 
 8. "He, having willed to produce various beings from his own divine 
 substance, first with a thought created the waters, and placed in them a 
 productive seed: 
 
 9. "The seed became an egg bright as gold, blazing like the luminary 
 with a thousand beams; and in that egg, he was born himself, in the 
 form of Brahma, the great forefather of all spirits. 
 
 10. "The waters are called ndrd, because they were the production of 
 Nara, or the spirit of God; and since they were his first ayana, or place 
 of motion, he thence is named Narayana, or moving on the waters. 
 
 11. "From that which is, the first cause, not the object of sense, exist- 
 ing everywhere in substance, not existing to our perception, without 
 being or end, was produced the divine male, famed in all worlds under 
 the appellation of Brahma. 
 
 12. "In that egg the great power sat inactive a whole year of the 
 Creator, at the close of which, by his thought alone, he caused the egg 
 to divide itself; 
 
 13. "And from its own two divisions he framed the heaven above 
 and the earth beneath : in the midst he placed the subtle ether, the eight 
 regions, and the permanent receptacle of waters. 
 
 14. "From the supreme soul he drew forth Mind, existing substantially 
 
CODE OF MANU 1007 
 
 though unperceived by sense, immaterial ; and before mind, or the reasoning 
 power, he produced consciousness, the internal monitor, the ruler; 
 
 15. "And, before them both, he produced the great principle of the 
 soul, or first expansion of the divine idea; and all vital forms endued 
 with the three qualities of goodness, passion and darkness ; and the 
 five perceptions of sense, and the five organs of sensation. 
 
 16. "Thus having at once pervaded, with emanations from the Supreme 
 Spiri-t, the minutest portions of six principles immensely operative, con- 
 sciousness and the five perceptions, He framed all creatures; 
 
 31. "That the human race might be multiplied, He caused the Brahman^ 
 the Cshatriya, the Vaisya, and the Sudra (so named from the scripture, 
 protection, wealth, and labour) to proceed from his mouth, his arm, 
 his thigh, and his foot. 
 
 Z^. "Having divided his own substance, the mighty power became half 
 male, half female, or nature active and passive; and from that female 
 he produced Viraj : 
 
 Then follows an account of the creations of various beings from lords 
 of created beings, genii, giants and men, to the smallest insects and 
 vegetables. 
 
 51. "He, whose powers are incomprehensible, having thus created both 
 me and this universe, was again absorbed in the supreme Spirit, changing 
 the time of energy for the time of repose. 
 
 52. "When that power awakes (for though slumber be not predicable 
 of the sole enternal Mind, infinitely wise and infinitely benevolent, yet it is 
 predicted of Brahma, figuratively, as a general property of life) then 
 has this world its full expansion; but, when he slumbers with a tranquil 
 spirit, then the whole system fades away; 
 
 53. "For while^he reposes, as it were, in calm sleep, embodied spirits, 
 endued with principles of action, depart from their several acts, and the 
 mind itself becomes inert; 
 
 54. "And when they once are absorbed in that supreme essence, then 
 the divine soul of beings withdraws his energy, and placidly slumbers; 
 
 55. "Then too this vital soul of created bodies, with all the organs 
 of sense and of action, remains long immersed in the first idea or in 
 darkness, and performs not its natural functions, bat migrates from its 
 corporal frame: 
 
 56. "When, being again composed of minute elementary principles, it 
 enters at once into vegetable or animal seed, it then assumes a new form. 
 
 57. "Thus that immutable power, by waking and reposing alternately, 
 revivifies and destroys in eternal succession, this whole assemblage of 
 locomotive and immovable creatures." 
 
 After this is a statement how Bhrigu was appointed by Manu to 
 promulgate his laws, how time is divided for mortals and for the Gods, 
 how Brahma reposes during his long night and awakening reanimates 
 the world and resumes the work of creation, how time is divided into 
 the Cit^ta, the Treta, the Dwdpara and the Cali ages. 
 
ioo8 APPENDIX 
 
 86. "In the Crfita the prevailing virtue is declared to be in devotion; 
 in the Treta, divine knowledge; in the Dwdpara, holy sages call sacrifice 
 the duty chiefly performed; in the Cali, liberality alone. 
 
 %7. "For the sake of preserving this universe, the Being, supremely 
 glorious, alloted separate duties to those who sprang respectively from 
 this mouth, his arm, his thigh and his foot. 
 
 88. "To Brahmans he assigned the duties of reading the Veda, of 
 teaching it, of sacrificing, of assisting others to sacrifice, of giving alms, 
 if they be rich, and, if indigent, of receiving gifts : 
 
 89. "To defend the people, to give alms, to sacrifice, to read the 
 Veda, to shun the allurements of sensual gratification, are, in a few 
 words, the duties of a Cshatriya: 
 
 90. "To keep herds of cattle, to bestow largesses, to sacrifice, to read 
 the scripture, to carry on trade, to lend at interest, and to cultivate 
 land are prescribed or permitted to a Vaisya: 
 
 91. "One principal duty the supreme Ruler assigns to a Sudra; namely, 
 to serve the before mentioned classes, without depreciating their worth. 
 
 92. "Man is declared purer above the navel; but the self-creating 
 Power declared the purest part of him to be his mouth. 
 
 93. "Since the Brahman sprang from the most excellent part, since 
 he was the first born, and since he possesses the Veda, he is by right 
 the chief of this whole creation. 
 
 The Brahman is declared to be a constant incarnation of Dharma, God 
 of Justice and the highest among men for whose instruction the code 
 was promulgated. 
 
 107. "In this book appears the system of law in its full extent, with 
 the good and bad properties of human actions, and the immemorial 
 customs of the four classes. 
 
 108. "Immemorial custom is transcendent law, approved in the sacred 
 scripture, and in the codes of divine legislators : let every man, there- 
 fore, of the three principal classes, who has a due reverence for the 
 supreme spirit which dwells in him, diligently and constantly observe 
 immemorial custom : 
 
 The balance of this chapter is a partial summary of the contents of 
 the following ones. 
 
 The next five chapters deal mainly with the education, duties, conduct 
 and privileges of the Brahmans. Chapter 2 is "On Education; or on 
 the Sacerdotal Class, and the First Order." 
 
 1. "Know that system of duties, which is revered by such as are 
 learned in the Vedas, and impressed, as the means of attaining beatitude, 
 on the hearts of the just, who are ever exempt from hatred and 
 inordinate affection. 
 
 2. "Self-love is no laudable motive, yet an exemption from self-love 
 is not to be found in this worW : on self-love is grounded the study of 
 scripture, and the practice of actions recommend in it. 
 
CODE OF MANU 1009 
 
 3. "Eager desire to act has its root in expectation of some advantage; 
 and with such expectation are sacrifices performed ; the rules of religious 
 austerity and abstinence from sins are all known to rise from hope of 
 remuneration. 
 
 4. "Not a single act here below appears ever to be done by a man 
 free from self-love; whatever he performs, it is wrought with his desire 
 of a reward. 
 
 5. "He, indeed who should persist in discharging these duties with- 
 out any view to their fruit, would attain hereafter the state of the 
 immortals, and even in this life, would enjoy all the virtuous gratifications, 
 that his fancy could suggest. 
 
 6. "The roots of law are the whole Veda, the ordinances and moral 
 practices of such as perfectly understand it, the immemorial customs 
 of good men, and, in cases quite indifferent, self-satisfaction. 
 
 13. "A knowledge of right is a sufficient incentive for men unattached 
 to wealth or to sensuality; and to those who seek a knowledge of 
 right, the supreme authority is divine revelation. 
 
 14. "But, when there are two sacred texts, apparently inconsistent, both 
 are held to be law ; for both are pronounced by the wise to be valid 
 and reconcilable. 
 
 15. "Thus in the Veda are these texts : "let the sacrifice be when 
 the sun has arisen," and "before it has arisen," and "when neither sun 
 nor stars can be seen : " the sacrifice, therefore may be performed at any 
 or all of those times. 
 
 16. "He whose life is regulated by holy texts, from his conception 
 even to his funeral pile, has a decided right to study this code; but 
 no other man whatsoever. 
 
 17. "Between the two divine rivers Saras wati and Hrishadwati, lies 
 the tract of land, which the sages have named Brahmaverta, because it was 
 frequented by Gods : 
 
 18. "The custom preserved by immemorable tradition in that country, 
 among the four pure classes, and among those which are mixed, is called 
 approved usage. 
 
 28. "By studying the Veda, by religious observances, by oblations to 
 fire, by the ceremony of Traividya, by offering to the Gods and Manes, 
 by the procreation of children, by the five great sacraments, and by solemn 
 sacrifices, this human body is rendered fit for a divine state. 
 
 29. "Before the section of the navel string a ceremony is ordained on 
 the birth of a male: he must be made, while sacred texts are pronounced, 
 to taste a little honey and clarified butter from a golden spoon. 
 
 30. "Let the father perform or, if absent, cause to be performed, on 
 the tenth or twelfth day after the birth, the ceremony of giving a name; 
 or on some fortunate day of the moon, at a lucky hour, and under the 
 influence of a star with good qualities. 
 
 31. "The first part of a Brahman's compound name should indicate 
 
loio APPENDIX 
 
 holiness; of a Cshatriya's, power; of a Vaisya's, wealth; and a Sudra's 
 con-tempt. 
 
 32. "Let the second part of the priest's name imply prosperity; of the 
 soldier's preservation; of the merchant's nourishment; of the servant's 
 humble attendance. 
 
 33. "The names of women should be agreeable, soft, clear, captivating 
 the fancy, auspicious, ending in long vowels, resembling words of 
 benediction. 
 
 34. "In the fourth month the child should be carried out of the house 
 to see the sun; in the sixth month he should be fed with rice; or that 
 may be done, which, by the custom of the family is thought most 
 propitious. 
 
 35. "By the command of the Veda, the ceremony of -tonsure should be 
 legally performed by the three first classes in the first of third year 
 after birth. 
 
 36. "In the eighth year from the conception of a Brahman, in the 
 eleventh from -that of a Cshatriya, and in the twelfth from that of a 
 Vaisya let the father invest the child with the mark of his class : 
 
 37. "Should a Brahman, or his father for him, be desirous of his ad- 
 vancement in sacred knowledge; a Cshatriya, of extending his power; or 
 a Vaisya of engaging in mercantile business ; the investiture may be made 
 in the fifth, sixth, or eighth years respectively. 
 
 38. "The ceremony of investiture hallowed by the gdyatri must not be 
 delayed, in the case of a priest, beyond the sixteenth year; nor in that 
 of a soldier, beyond the twenty-second ; nor in -that of a merchant, beyond 
 the twenty-fourth. 
 
 39. "After that, all youths of all three classes, who have not been 
 invested at the proper time, became vrdtyas, or outcastes, degraded from 
 the gdyatri, and contemmed by the virtuous : 
 
 53. "Let the student, having performed his ablution, always eat his 
 food without dis-traction of mind; and, having eaten, let him thrice wash 
 his mouth completely, sprinkling with water the six hollow parts of his 
 head, or his eyes, ears, and nostrils. 
 
 54. "Let him honor all his food, and eat it without contempt; when he 
 sees it let him rejoice and be calm, and pray that he may always obtain it. 
 
 55. "Food, eaten constantly with respect, gives muscular force and 
 generative power; but, eaten irreverently, destroys them both. 
 
 56. "He must beware of giving any man what he leaves; and of eating 
 anything between morning and evening : he must also beware of eating too 
 much, and of going any whither with a remnant of his food unswallowed. 
 
 63. "A youth of the three highest classes is named upaviti, when his 
 right hand is extended for the cord to pass over his head and be fixed 
 on his left shoulder: when his left hand is extended, that the thread 
 may be placed on his right shoulder, he is called prdchindviti ; and 
 naviti, when it is fastened on his neck. 
 
CODE OF MANU ion 
 
 64. "His girdle, his leathern mantle, his staff, his sacrificial cord, and 
 his ewer, he (must throw into the water, when they are worn out or 
 broken, and receive others hallowed by mystical texts. 
 
 65. "The ceremony of cesanta, or cutting off the hair, is ordained for a 
 priest in the sixteenth year from conception; for a soldier in the twenty- 
 second; for a merchant two years later than that. 
 
 66. "The same ceremonies, except that of the sacrificial thread, must 
 be duly performed for women at the same age and in the same order, 
 that the body may be made perfect; but without any text from the Veda. 
 
 67. "The nuptial ceremony is considered as the complete institution of 
 women, ordained for them in the Veda, together with reverence of their 
 husbands, dwelling first in their fathers family, the business of the house, 
 and attention to sacred fire. 
 
 69. "The venerable preceptor having girt his pupil with the thread, must 
 first instruct him in purification, in good customs, in the management 
 of the consecrated fire, and in the holy rites of morning, noon, and 
 evening. 
 
 70. "When the student is going to read the Veda, he must perform an 
 ablution, as the law ordains, with his face to the north, and, having paid 
 scriptural homage, he must receive instruction, wearing a clean vest, his 
 members being duly composed. 
 
 71. "At the beginning and end of the lecture, he must always clasp both 
 the feet of his preceptor; and he must read with both his hands closed: 
 (this is called scriptural homage.) 
 
 y6. "Brahma milked out, as it were, from the three Vedas, the letter A, 
 the letter U, and the letter M, which form from their coalition the triliteral 
 monosyllables, together with three mysterious words, hhur, bhuvah, swer, or 
 earth, sky, heaven : 
 
 79. "And a twice born man, who shall a thousand times repeat those 
 three (or dm, the vydhntis, and the gdyatrl,) apart from the multitude, 
 shall be released in a month even from a great offense, as a snake from 
 his slough. 
 
 80. "The priest, the soldier and the merchant, who shall neglect this 
 mysterious text, and fail to perform in due season his peculiar acts 
 of piety, shall meet with contempt among the virtuous." 
 
 The organs of sense are enumerated and the necessity for keeping 
 mastery of them and abs'taining from sensual gratification is declared. 
 Self-control, repetition of the holy texts, purification by bathing and 
 reading the Veda are enjoined over and over again. 
 
 108. "Let the twice-born youth, who has been girt with the sacrificial 
 cord, collect wood for the holy fire, beg food of his relations, sleep 
 on a low bed, and perform such offices as may please his preceptor, 
 until his return to the house of his natural father. 
 
 109. "Ten persons may legally be instructed in the Veda; the son 
 of a spiritual teacher ; a boy who is assiduous ; one who can impart 
 
10I2 APPENDIX 
 
 other knowledge; one who is just; one who is pure; one who is 
 friendly; one who is powerful; one who can bestow wealth, one who 
 is honest; and one who is related by blood. 
 
 no. "Let not the sensible teacher tell any other what he is not 
 asked, nor what he is asked improperly; but let him, however intelligent,, 
 act in the multitude as if he were dumb: 
 
 III. "Of the two persons him, who illegally asks, and him, who 
 illegally answers, one will die, or incur odium." 
 
 Definite rules are given for saluting persons of the various classes 
 and those related to the speaker in the degrees named. 
 
 138. "Way must be made for a man in a wheeled carriage, or above 
 ninety years old, or afflicted with disease, or carrying a burthen; for 
 a woman; for a priest just returned from the mansion of his preceptor; 
 for a prince and for a bridegroom: 
 
 146. "Of him, who gives natural birth, and him, who gives knowledge 
 of the whole Veda, the giver of sacred knowledge is the more venerable 
 father; since the second or divine birth ensures life to the twice-born 
 both in this world and hereafter eternally. 
 
 154. "Greatness is not conferred by years, not by gray hairs nor 
 by wealth, not by powerful kindred : the divine sages have established 
 this rule; "whoever has read the Vedas and their Angas, he among 
 us is great." 
 
 155. "The seniority of priests is from sacred learning; of warriors 
 from valour; of merchant from abundahce of grain; of the servile 
 class only from priority of birth. 
 
 159. "Good instruction must be given without pain to the instructed; 
 and sweet gentle speech must be used by a preceptor, who cherishes 
 virtue. 
 
 160. "He, whose discourse and heart are pure, and ever perfectly 
 guarded, attains all the fruit arising from his complete course of 
 studying the Veda. 
 
 161. "Let not a man be querulous even though in pain; let him not 
 injure another in deed or in thought; let him not even utter a word,, 
 by which his fellow creature may suffer uneasiness; since that wilt 
 obstruct his own progress to future beatitude. 
 
 162. "A Brahman should constantly shun worldly honour, as he would 
 shun poison ; and rather constantly seek disrespect, as he would seek 
 nectar ; 
 
 163. "For though scorned, he may sleep with pleasure ; with pleasure 
 may be awake; with pleasure may he pass through this life; but the 
 scorner utterly perishes. 
 
 171. "Sages call the Achdrya father, from his giving instruction in 
 the Veda: nor can any holy rite be performed by a young man, before 
 his investiture. 
 
 172. "Till he be invested with the signs of his class, he must not 
 
CODE OF MANU 1013 
 
 pronounce any sacred text, except what ought to' be used in obsequies 
 to an ancestor; since he is on a level with a Sudra before his new 
 birth from the revealed scripture: 
 
 175. "These following rules must a Brahmachari, or student in theology 
 observe, while he dwells with his preceptor; keeping all his members 
 under control, for the sake of increasing his habitual devotion. 
 
 176. "Day by day, having bathed and been purified, let him offer fresh 
 water to the gods, the Sages, and the Manes; let him show respect to 
 the images of the deities, and bring wood for the oblation to fire. 
 
 177. "Let him abstain from honey, from fresh meat, from perfumes, 
 from chaplets of flowers, from sweet veget?ible juices, from women, 
 from all sweet substances turned acid, and from injury to animated 
 beings ; 
 
 178. "From unguents for his limbs, and from black powder for his 
 eyes, from wearing sandals, and carrying an umbrella, from sensual 
 desires, from wrath, from covetousness, from dancing, and from vocal and 
 instrumental music ; 
 
 179. "From gaming, from disputes, from detraction, and from false- 
 hood, from embracing or wantonly looking at women, and from dis- 
 service to other men. 
 
 182. "Let him carry water-pots, flowers, cow-dung, fresh earth and 
 cusa-grass, as much as may be useful to his preceptor; and let him 
 perform every day the duty of a religious mendicant. 
 
 183. "Each day must a Brahman student receive his food by begging 
 with due care, from the houses of persons renowned for discharging 
 their duties, and not deficient in performing the sacrifices which the 
 Veda ordains. 
 
 184. "Let him not beg from the cousins of his preceptor; nor from 
 his own cousins; nor from other kinsmen by the fathers side, or by 
 the mothers; but, if other houses be not accessible, let him begin with 
 the last of those in order, avoiding the first; 
 
 185. "Or, if none of those houses just mentioned can be found, 
 let him go begging through the whole district round the village, keeping 
 his organs in subjection, and remaining silent; but let him turn away 
 from such as have committed any deadly sin. 
 
 186. "Having brought logs of wood from a distance, let him place 
 them in the open air ; and with them let him make an oblation to fire 
 without remissness, both evening and morning. 
 
 187. "He, who for seven successive days omits the ceremony of 
 begging food, and offers not wood to the sacred fire, must perform the 
 penance of an avacirni, unless he be afflicted with illness. 
 
 188. "Let the student persist constantly in such begging, but let him 
 not eat the food of one person only; the subsistence of a student by 
 begging is held equal to fasting in religious merit. 
 
 189. "Yet, when he is asked in a solemn act in honour of the Gods 
 
I0I4 APPENDIX 
 
 or the Manes, he may eat at his pleasure the food of a single person ; 
 observing, however, the laws of abstinence and the austerity of an 
 anchoret: thus the rule of his order is kept inviolate. 
 
 190. "This duty of a mendicant is ordained by the wise for a Brahman 
 only; but no such act is appointed for a warrior, or for a merchant." 
 
 Very precise rules are given for the conduct of the scholar in the 
 presence of his preceptor and while receiving instruction. The utmost 
 respect and deference must be constantly shown. 
 
 224. "The chief temporal good is by some declared to consist in 
 virtue and wealth; by some, in wealth and lawful pleasure; by some, in 
 virtue alone; by others, in wealth alone; but the chief good here below 
 is an assemblage of all three : this is a sure decision : 
 
 225. "A teacher of the Veda is the image of God; a natural father, 
 the image of Brahma; a mother, the image of the e?rth; an elder whole 
 brother, the image of the soul. 
 
 226. "Therefore a spiritual and a natural father, a mother and an 
 elder brother, are not to be treated with disrespect, especially by a 
 Brahman, though the student be grievously provoked. 
 
 227. "That pain and care which a mother and father undergo in pro- 
 ducing and rearing children, cannot be compensated in a hundred years. 
 
 228. "Let every man constantly do what may please his parents: 
 and, on all occasions , what may please his preceptor; when those three 
 are satisfied, his whole course of devotion is accomplished. 
 
 241. "In case of necessity, a student is required to learn the Veda, 
 from one who is not a Brahman, and, as long as that instruction 
 continues, to honour his instructor with obsequious assiduity; 
 
 242. "But a pupil who seeks the incomparable path to heaven, should 
 not live to the end of his days in the dwelling of a preceptor who is 
 no Brahman, or who has not read all the Vedas with their Angas. 
 
 245. "Let not a student, who knows his duty, present any gift to 
 his preceptor before his return home; but when, by his tutors per- 
 mission, he is going to perform the ceremony on his return, let him 
 give the venerable man some valuable thing to the best of his power; 
 
 246. "A field, or gold, a jewel, a cow, or a horse, an umbrella, a 
 pair of sandals, a stool, corn, clothes, or even any very excellent vegetable : 
 thus will he gain the affectionate remembrance of his instructor. 
 
 247. "The student for life must, if his teacher die, attend on his 
 virtuous son or his widow, or on one of his paternal kinsmen, with 
 the same respect which he showed to the living: 
 
 248. "Should none of those be alive, he must occupy the station of 
 his preceptor, the seat, and the place of religious exercises ; must 
 continually pay due attention to the fires, which he had consecrated; 
 and must prepare his own soul for heaven. 
 
 ■Chapter 3 is "On Marriage or the Second Order." 
 
 I. "The discipline of the student in the three Vedas may be continued 
 
CODE OF MANU 1015 
 
 for thirty-six years, in the house of his preceptor; or for half that 
 time, or for a quarter of it, or until he perfectly comprehend them: 
 
 2. "A student, whose rules have not been violated, may assume 
 the order of a married man, after he has read in succession a sdc'hd, 
 or branch from each of the three, or from two, or from any one of them. 
 
 3. "Being justly applauded for the strict performance of his duty 
 and having received from his natural or spiritual father the sacred 
 gift of the Veda, let him sit on an elegant bed, decked with a garland 
 of flowers, and let his father honour him, before his nuptials, with a 
 present of a cow. 
 
 4. "Let the twice-born man, having obtained the consent of his 
 venerable guide, and having performed his ablutions with stated cere- 
 monies, on his return home, as the law directs, espouse a wife of the 
 same class with himself and endued with the marks of excellence. 
 
 5. "She, who is not descended from his paternal or maternal an- 
 cestors, within the sixth degree, and who is not known by her family 
 name to be of the same primitive stock with his father or mother, 
 is eligible by a twice-born man for nuptials and holy union: 
 
 6. "In connecting himself with a wife, let him studiously avoid the 
 ten following families, be they ever so great, or ever so rich in kine, 
 goats, sheep, gold and grain: 
 
 7. "The family which has omitted prescribed acts of religion; that 
 which has produced no male children; that, in which the Veda has 
 not been read; that, which has thick hair on the body; and those, which 
 have been subject to hemorrhoids, to phthisis, to dyspepsia, to epilepsy, 
 to leprosy, and to elephantiasis. 
 
 8. "Let him not marry a girl with reddish hair, nor with any deformed 
 limb; nor one troubled with habitual sickness; nor one either with no 
 hair or with too much; nor one immoderatively talkative; nor one with 
 inflamed eyes ; 
 
 9. "Nor one with the name of a constellation, or of a tree, or of a 
 river, of a barbarous nation, or of a mountain, of a winged creature, 
 a snake or a slave; nor with any name raising an image of terror. 
 
 10. "Let him chuse for his wife a girl, whose form has no defect, 
 who has an agreeable name; who walks gracefully like a plenicopteros, 
 or like a young elephant; whose hair and teeth are moderate respectively 
 in quantity and size; whose body has exquisite softness. 
 
 11. "Her, who has no brother, or whose father is not well known, 
 let no sensible man espouse, through fear les-t, in the former case, her 
 father should take her first son as his own to perform his obsequies ; 
 or, in the second case, lest an illicit marriage should be contracted. 
 
 12. "For the first marriage of the twice-born classes, a woman of 
 the same class is . recommended ; but for such as are impelled from • 
 inclination to marry again, women in the direct order of the classes 
 are to be preferrerd; 
 
ioi6 APPENDIX 
 
 13. "A Sudra woman only must be the wife of a Sudra; she and a 
 Vaisya, of a Vaisya; they two and a Cshatryia, of a Cshatriya; those 
 two and a Brahmani of a Brahman." 
 
 Eight forms of marriage ceremony are named and defined as follows: 
 2T. "The gift of a daughter, clothed only with a single robe, to 
 a man learned in the Veda, whom her father voluntarily invites, and 
 respectfully receives, is the nuptial right called Brahma. 
 
 28. "The rite which sages call Daiva, is the gift of a daughter, whom 
 her father has decked in gay attire, when the sacrifice is already begun, 
 to the officiating priest, who performs that act of religion. 
 
 29. "When the father gives his daughter away, after having received 
 from the bridegroom one pair of kine, or two pairs, for uses prescribed" 
 by law, that marriage is termed Arsha. 
 
 30. "The nuptial rite called Prdjdpatya, is when the father gives away 
 his daughter with due honour, saying distinctly, "May both of you perform 
 together your civil and religious duties." 
 
 31. "When the bridegroom, having given as much wealth as he can 
 afford to the father and paternial kinsmen, and to the damsel herself, 
 takes her voluntarily as his bride, that marriage is named Asura. 
 
 32. "The reciprocal connection of a youth and a damsel, with mutual 
 desire, is the marriage denominated Gdndharva, contracted for the pur- 
 pose of amorous embraces, and proceeding from sensual inclination. 
 
 ZZ' "The seizure of a maiden by force from her house, while she 
 weeps and calls for assistance, after her kinsmen and friends hav« 
 been slain in battle, or wounded and their houses broken open, is the 
 marriage styled Racshasa. 
 
 34. "When the lover secretly embraces the damsel, either sleeping 
 or flushed with strong liquor, or disordered in her intellect, that sinful 
 marriage, called Paisdcha, is the eighth and the basest. 
 
 35. "The gift pf daughters in marriage by the sacerdotal class, is 
 most approved when they previously have poured water into the hands 
 of the bridegroom; but the ceremonies of the other classes may be 
 performed according to their several fancies." 
 
 The good effects flowing from the first four marriages are declared 
 and the evil effects of the four base ones. 
 
 6y. "Let the housekeeper perform domestic religious rites, with the 
 nuptial fire, according to law, and the ceremonies of the five great 
 sacraments, and the several acts which must day by daj' be performed. 
 
 68. "A housekeeper has five places of slaughter, or where small living 
 creatures may be slain; his kitchen-hearth, his grindstone, his broom, 
 his pestle and mortar, his water-pot; by using which, he becomes in 
 bondage to sin. 
 
 69. "For the sake of expiating offences committed ignorantly in those 
 places mentioned in order, the five great sacraments were appointed by 
 eminent sages to be performed each day by such as keep house. 
 
CODE OF MANU 1017 
 
 70. "Teaching and studying the scripture is the sacrament of the 
 Veda; offering cakes and water, the sacrament of the Manes; an ob- 
 lation to fire the sacrament of the Deities; rice or other food to living 
 creatures, the sacrament of spirits; receiving guests with honour, the 
 sacrament of men : 
 
 71. "Whoever omits not those five great ceremonies, if he have ability 
 to perform them, is untainted by the sins of the five slaughtering-places, 
 even though he constantly reside at home. 
 
 ^2. "But whoever cherishes not five orders of beings, namely, the 
 deities; those who demand hospitality; those, whom he ought by law to 
 maintain; his departed forefathers; and himself; that man lives not 
 even though he breathe." 
 
 Very full and definite rules are declared for the various sacraments 
 and oblations to be performed by householders and hospitality is strictly 
 enjoined. 
 
 105. "No guest must be dismissed in the evening by a house-keeper, 
 he is sent by the retiring sun; and, whether he came in fit season or 
 unseasonably, he must not sojourn in the house without entertainment. 
 
 106. "Let not himself eat any delicate food, without asking his guest 
 to partake of it: the satisfaction of a guest will assuredly bring the 
 house-keeper wealth, reputation, long life, and a place in heaven." 
 
 The performance of oblations to deceased ancestors is treated as a 
 matter of great importance, and rules are given as to the guests to be 
 invited and excluded and places and manner in which the srdddha is to 
 be performed. The kinds of food to be provided, the manner of serving 
 and the precedence to be accorded to the different guests are stated in 
 detail, and the salutations to be made to the guests at the conclusion 
 are given. 
 
 278. "As the latter or dark .half of the month surpasses, for the 
 celebration of obsequies, the former or bright half, so the latter half 
 of the day surpasses for the same purpose, the former half of it. 
 
 279. "The oblation to ancestors must be duly made, even to the con- 
 clusion of it with the distribution to the servants, (or even to the close 
 of life), in the form prescribed, by a Brahman wearing his thread on 
 his right shoulder, proceeding from left to right, without remissness, 
 and with cMja-grass in his hand. 
 
 280. "Obsequies must not be performed by night; since the night is 
 called rdchast, or infested by demons ; nor while the sun is rising or 
 setting, nor when it has just arisen. 
 
 281. "A house-keeper unable to give a monthly repast, may perform 
 obsequies here below, according to the sacred ordinance, only thrice a 
 year, in the seasons of hemanta, grishma, and vershd; but the five 
 sacramenta he must perform daily. 
 
 282. "The sacrificial oblation at obsequies to ancestors, is ordained to 
 be made in no vulgar fire; nor should the monthly srdddha of that 
 
ioi8 APPENDiIX 
 
 Brahman, who keeps a perpetual fire, be made on any day, except on that 
 of the conjunction. 
 
 283. When a twice-born man, having performed his ablution, offers 
 a satisfaction to the Manes with water only, -being unable to give a 
 repast, he gains by that offering all the fruit of a srdddha. 
 
 Chapter four is entitled, "On Economics; and Private Morals." 
 
 1. "Let a Brahman, having dwelt with a preceptor during the first 
 quarter of a man's life, pass the second quarter of human life in his 
 own house, when he has contracted a legal marriage. 
 
 2. "He must live with no injury, or with the least possible injury 
 to animated beings, by pursuing those means of gaining subsistence^ 
 which are strictly prescribed by law, except in times of distress. 
 
 3. "For the sole purpose of supporting life, let him acquire property 
 by those irreproachable occupations, which are peculiar to his class, 
 and unattended with bodily pain. 
 
 4. "He may live by rita and amrita, or, if necessary, by mrita, or 
 pramrita, or even by satydnrita; but never let him subsist by swavritti: 
 
 5. "By rita must be understood lawful gleaning and gathering by amrita, 
 what is given unasked; by nmta, what is asked as alms; tillage is called 
 pramrXta; , 
 
 6. "Traffic and money-lending are satydnrita; even by them when 
 he is deeply distressed, may he support life; but service for hire is 
 named swavritti, or dog-living, and of course he must by all means avoid it. 
 
 11. "Let him never for the sake of a subsistence, have recourse to 
 popular conversation; let him live by the conduct of a priest, neither 
 crooked, nor artful, nor blended with the manners of the mercantile class. 
 
 12. "Let him, if he seek hapiness, be firm in perfect content, and 
 check all desire of acquiring more than he possesses; for hapiness has 
 its root in content, and discontent is the root of misery." 
 
 He is enjoined to perform his daily duties without sloth, avoiding 
 sensual gratification, and reading the holy books. 
 
 29. "Let him take care, to the utmost of his power, that no guest 
 sojourn in his house unhonoured with a seat, with food, with a bed, 
 with water, with esculent roots, and with fruit: 
 
 30. "But, let him not honour with his conversation such as do for- 
 bidden acts ; such as subsist like cats, by interested craft ; such as believe 
 not the scripture; such as oppugn it by sophisms or such as live like 
 rapacious water-birds. 
 
 33. A priest who is master of a family, and pines with hunger, may 
 seek wealth from a king of the military class, from a sacrificer, or his 
 own pupil, but from no person else, unless all other helps fail: thus 
 will he show his respect for the law. 
 
 34. "Let no priest, who keeps house, and is able to procure food,. 
 
CODE OF MANU 1019 
 
 ever waste himself with hunger; nor, when he has any substance, let him 
 wear old or sordid clothes. 
 
 35. "His hair, nails, and beard being clipped; his passions subdued; 
 his mantle, white, his body pure; let him diligently occupy himself in 
 reading the Veda, and be constantly intent on such acts, as may be 
 salutary to him. 
 
 2,7. "He must not gaze on the sun, whether rising or setting, or 
 eclipsed, or reflected in water, or advanced to the middle of the sky. 
 
 2,^. "Over a string, to which a calf is tied, let him not step; nor let 
 him run while it rains ; nor let him look on his own image in water : 
 this is a settled rule. 
 
 39, "By a mound of earth, by a cow, by an idol, by a Brahman, by a 
 pot of clarified butter, or of honey, by a place where four ways meet, 
 and by large trees well known in the district, let him pass with his right 
 hand toward them. 
 
 43. Let him neither eat with his wife nor look at her eating, or sneezing, 
 or yawning, or sitting carelessly at her ease." 
 
 Many other rules of personal conduct are given which appear quite 
 whimsical. 
 
 66. "Let him not use either slippers or clothes, or a sacerdotal string, 
 or an ornament, or a garland, or a waterpot, which before have been 
 used by another. 
 
 76. "Let him take his food, having sprinkled his feet with water, 
 but never let him sleep with his feet wet : he, who takes his food with 
 his feet so sprinkled, will attain long life. 
 
 yy. Let him never advance into a place undistinguishable by his eye, 
 or not easily passable : never let him look at urine or ordure ; nor let 
 him pass a river swimming with his arms. 
 
 78. "Let not a man, who desires to enjoy long life, stand upon hair, 
 nor upon ashes, bones, nor potsherds, nor upon seeds of cotton, nor 
 upon husks of grain. 
 
 79. "Nor let him tarry even under the shade of the same tree with 
 outcasts for great crimes, nor with Chandalas, nor with Puccasas, nor 
 with idiots, nor with men proud of wealth, nor with washermen and 
 other vile persons, nor with Antyavasayins. 
 
 80. "Let him not give even temporal advice to a Sudra ; nor, except to 
 his own servant, what remains from his table; nor clarified butter, of which 
 part has been offered to the gods; nor let him in person give spiritual 
 counsel to such a man, nor personally inform him of the legal expiation for 
 his sin : 
 
 84. "From a king, not born in the military class, let him accept no 
 gift, nor from such as keep a slaughterhouse, or an oil press, or put out 
 a vintner's flag, or subsist by the gain of prostitutes : 
 
 85. "One oil-press is as bad as ten slaughter-houses; one vintners flag. 
 
I020 APPENDIX 
 
 as ten oil-presses; one prostitute as ten vintners flags; one such king 
 as ten prostitutes; 
 
 86. "With a slaughterer, therefore, who employs tefl thousand slaughter- 
 houses, a king, not a soldier by birth, is declared to be on a level ; and 
 a gift from him is tremendous. 
 
 87. "He, who receives a present from an avaricious king and a trans- 
 gressor of the sacred ordinances, goes in succession to the following 
 twenty-one hells: 
 
 102. "By night, when the wind meets his ear, and by day when the 
 dust is collected, he must not read in the season of rain; since both those 
 times are declared unfit for reading, by such as know when the Veda 
 ought to be read. 
 
 103. "In lightning, thunder and rain, or during the fall of large 
 fireballs on all sides, at such times Manu has ordained the reading of 
 scripture to be deferred till the same time next day. 
 
 104. "When the priest perceives those accidents occurring at once, while 
 his fires are kindled for morning and evening sacrifices, then let him 
 know, that the Veda must not be read ; and when clouds are seen gathered 
 out of season. 
 
 111. "As long as the scent and unctuosity of perfumes remain on the 
 body of a learned priest, who has partaken of an entertainment, so long 
 he must abstain from pronouncing the texts of the Veda. 
 
 112. "Let him not read lolling on a couch, nor with his feet raised 
 on a bench, nor with his thighs crossed, nor having lately swallowed 
 meat, or the rice and other food on the birth or death of a relation; 
 
 113. ^'Nor in a cloud of dust, nor while arrows whiz, or a lute sounds, 
 nor in either of the twilights, nor at the conjunction, nor on the fourteenth 
 day, nor at the opposition, nor on the eighth day, of the moon: 
 
 117. "Be it an animal, or a thing inanimate, or whatever be the gift 
 at a srdddha, let him not, having lately accepted it, read the Veda; for 
 such a Brahman is said to have his mouth in his hand. 
 
 118. "When the town is beset by robbers, or an alarm has been raised 
 by fire, and in all terrors frooii strange phenomena, let hiim know that 
 his lecture must be suspended till the due time after the cause of terror 
 be ceased." 
 
 Other times and circumstances are mentioned which render it incumbent 
 on the Brahman to abstain from or suspend reading the Veda. 
 
 135. "Never let him who desires an increase of wealth, despise a 
 warrior, a serpent, or a priest versed in scripture, how mean soever they 
 may appear; 
 
 136. "Since those three when contemmed, may destroy a man; let a 
 wise man therefore always beware of treating those three with contempt, 
 
 137. "Nor should he despise even himself on account of previous mis- 
 
CODE OF MANU 1021 
 
 •carriages: let him pursue fortune till death, nor ever think her hard to 
 be attained. 
 
 138. "Let him say what is true, but let him say what is pleasing; let 
 him speak no disagreeable truth, nor let him speak agreeable falsehood: 
 this is a primeval rule. 
 
 139. "Let him say, "'well and good," or let him say, "well," only; but 
 let him not maintain fruitless enmity and altercation with any man. 
 
 140. "Let him not journey too early in the morning or too late in the 
 evening, nor too near the mid-day, nor with an unknown companion, 
 nor alone, nor with men of the servile class. 
 
 141. "Let him not insult those, who want a limb, or have a limb 
 redundant, who are unlearned, who are advanced in age, who have no 
 beauty, who have no wealth, or who are of an ignoble race. 
 
 142. "Let no priest, unwashed after food, touch with his hand a cow, 
 a Brahman, or fire; nor being in good health and unpurified, let him 
 even look at the luminaries in the firmament: 
 
 143. "But, having accidentally touched them before his purification, let 
 him ever sprinkle with water, in the palm of his hand, his organs of 
 sensation, all his limbs, and his navel. 
 
 159. "Whatever act depends on another man, that act let him carefully 
 shun; but whatever depends on himself, to that let him studiously attend: 
 
 160. "All, that depends on another, gives pain; and all, that depends 
 on himself, gives pleasure; let him know this to be in few words the 
 definition of pleasure and pain. 
 
 161. "When an act, neither prescribed nor prohibited, gratifies the mind 
 of him who performs it, let him perform it with diligence; but let him 
 avoid its opposite. 
 
 162. "Him, by whom he was invested with the sacrificial thread, him, 
 who explained the Veda or even a part of it, his mother, and his father, 
 natural or spiritual, let him never oppose; nor priests nor cows, nor 
 persons truly devout." 
 
 The following rules of conduct may well be learned and observed by 
 all men. 
 
 171. "Though oppressed by penury, in consequence of his righteous 
 dealings, let him never give his mind to unrighteousness ; for he may 
 observe the speedy overthrow of iniquitous and sinful men. 
 
 172. "Iniquity, committed in this world, produces not fruit immediately, 
 but, like the earth, in due season; and, advancing by little and little, it 
 eradicates the man who committed it. 
 
 173. "Yes, iniquity, once committed, fails not of producing fruit to him, 
 who wrought it; if not in his own person, yet in his sons; or, if not in 
 his sons, yet in his grandsons. 
 
 174. "He grows rich for a while through unrighteousness; then he 
 
I022 APPENDIX 
 
 beholds good things; then it is, that he vanquishes his foes; but he 
 perishes at length from his whole root upwards. 
 
 175. "Let a man continually take pleasure in truth, in justice, in laudable 
 practices, and in purity; let him chastise those, whom he may chastise, 
 in a legal mode; let him keep in subjection his speech, his arm, and his 
 appetite : 
 
 176. "Wealth and pleasure, repugnant to law, let him shun; and even 
 lawful acts, which may cause future pain, or be offensive to mankind. 
 
 177. "Let him not have nimble hands, restless feet, or voluble eyes ; let 
 him not be crooked in his ways ; let him not be flippant in his speech, nor 
 intelligent in doing mischief. 
 
 178. "Let him walk in the path of good man; the path, in which his 
 forefather walked; while he moves in that path he can give no offense. 
 
 179. "With an attendant on consecrated fire, a performer of holy rites, 
 and a teacher of the Veda, with his maternal uncle, with his guest or a 
 dependent, with a child, with a man either aged or sick, with a physician,, 
 with his paternal kindred, with his relations by marriage, and with cousins 
 on the side of his mother, 
 
 180. "With his mother herself, or with his father, with his kinswomen, 
 with his brother, with his son, his wife, or his daughter, and with his 
 whole set of servants let him have no strife. 
 
 186. "Though permitted to receive presents, let him avoid a habit 
 of taking them; since, by taking many gifts, his divine light soon fades. 
 
 187. "Let no man of sense, who has not fully informed himself of the 
 law concerning gifts of particular things, accept a present, even though 
 he pine with hunger. 
 
 188. "The man who knows not that law, yet accepts gold or gems, 
 land, a horse, a cow, food, raiment, oils or clarified butter, becomes mere 
 ashes, like wood consumed by fire: 
 
 189. "Gold and gems burn up his nourishment and life; land and a 
 cow, his body; a horse, his eyes; raiment, his skin; clarified butter, his 
 manly strength ; oils, his progeny. 
 
 190. "A twice-born man, void of true devotion, and not having read the 
 Veda, yet eager to take a gift, sinks down together with it, as with a 
 boat of stone in deep water. 
 
 204. "A wise man should constantly discharge all the moral duties, 
 though he performs not constantly the ceremonies of religion; since he 
 falls low, if, while he performs ceremonial acts only, he discharge not 
 his moral duties." 
 
 A long list is given of food which he is prohibited from eating, some for 
 sanitary reasons and others because of contamination ; thus he must not 
 eat food on which lice have fallen or that has been designedly touched 
 by the foot or smelled by a cow; nor the food of knaves, harlots, public 
 
CODE OF MANU 1023 
 
 singers, a eunoch, insane, wrathful, or sick persons, of a physician, hunter, 
 backbiter, false witness or a blacksmith. 
 
 222. "Having unknowingly swallowed the food of any such person, he 
 must fast during three days ; but, having eaten it knowingly, he must 
 perform the same harsh penance, as if he had tasted any seminal impurity, 
 ordure, or urine, 
 
 236, "Let not a man be proud of his rigorous devotion; let him not, 
 having sacrificed, utter a falsehood; let him not though injured, insult a 
 priest; having made a donation, let him never proclaim it. 
 
 '^'Zl- "By falsehood, the sacrifice becomes vain; by pride, the merit 
 of devotion is lost; by insulting priests, life is diminished; and by pro- 
 claiming a largess, its fruit is destroyed. 
 
 238. "Giving no pain to any creature, let him collect virtue by degrees, 
 for the sake of acquiring a companion to the next world, as the white 
 ant by degrees builds its nest; 
 
 239. "For, in his passage to the next world, neither his father nor his 
 mother, nor his wife, nor his son, nor his kinsmen will remain in his 
 company: his virtue alone will adhere to him." 
 
 Chapter 5 is entitled, "On Diet, Purification, and Women." 
 A long list of prohibited foods is given. 
 
 19. "The twice-born man who has intentionally eaten a mushroom, the 
 flesh of a tame hog, or a town-cock, a leek, or an onion, or garlick is 
 degraded immediately. 
 
 20. "But having undesignedly tasted either of those six things, he must 
 perform the penance sdntapana, or the chdndrdyana, which anchorets prac- 
 tice; for other things he must fast a whole day. 
 
 21. "One of those harsh penances, called prajdpatya, the twice-born man 
 must perform annually, to purify him from the unknown taint of illicit 
 food; but he must do particular penance for such food intentionally 
 eaten." 
 
 This is followed by a list of foods which may be eaten. 
 
 39. "By the self-existing in person were beasts created for sacrifice; 
 and the sacrifice was ordained for the increase of this universe: the 
 slaughterer, therefore, of beasts for sacrifice is in truth no slaughterer. 
 
 40. "Gramineous plants, cattle, timber trees, amphibious animals, and 
 birds, which have been destroyed for the sacrifice, attain in the next 
 world exalted births. 
 
 41. "On a solemn offering to a guest, at a sacrifice, and in holy rites 
 to the manes or to the gods, but on those occasions only, may cattle be 
 slain : this law Manu enacted. 
 
 45. "He, who injures animals, that are not injurious, from a wish to 
 give himself pleasure, adds nothing to his own happiness, living or dead; 
 
 46. "While he, who gives no creature willingly the pain of confine- 
 
I024 APPENDIX 
 
 ment or death, but seeks the good of all sentient beings, enjoys bliss 
 without end. 
 
 58. "When a child has teethed, and when, after teething, his head has 
 been shorn, and when he has been grit with his thread, and when, being 
 full grown, he dies, all his kindred are impure: on the birth of a child 
 the law is the same. 
 
 59. "By a dead body, the sapindas are rendered impure in the law for 
 ten days, or until the fourth day, when the bones have been gathered up, 
 or for three days, or for one day only, according to the qualities of the 
 deceased. 
 
 60. "Now that the relation of the sapindas, or men connected by the 
 funeral cake, ceases with the seventh person, or in the sixth degree of 
 ascent or descent, and that of samdnodacas, or those connected by an 
 €qual oblation of water, ends only, when their births and family names 
 are no longer known." 
 
 Rules as to who becomes impure from the death of relatives, the per- 
 formance of funeral rites and other circumstances are given and the 
 manner of purification prescribed. 
 
 96. "The corporal frame of a king is composed of particles from Soma, 
 Agni, Sura, Pavana, Indra, Cuvera, Varuna, and Yama, the eight guardian 
 "deities of the world. 
 
 97. "By those guardians of men in substance is the king pervaded, 
 and he cannot by law be impure; since by those tutelar gods are the 
 purity and impurity of mortals both caused and removed. 
 
 98. "By a soldier, discharging the duties of his class, and slain in the 
 field with brandished weapons, the highest sacrifice is, in that instant 
 complete; and so is his purification; this law is fixed. 
 
 99. "A priest, having performed funeral rites, is purified by touching 
 water; a soldier, by touching his horse or elephant, or his arms; a 
 husbandman, by touching 'his goad, or the halter of his cattle; a servant, 
 ty touching his staflf. 
 
 105. "Sacred learning, austere devotion, fire, holy aliment, earth, the 
 mind, water, smearing with cow-dung, air, prescribed acts of religion, the 
 sun and time, are purifiers of embodied spirits ; 
 
 106. "But of all pure things, purity in acquiring wealth, is pronounced 
 the most excellent; since he, who gains wealth with clean hands, is truly 
 pure; not he who is purified merely with earth and water, 
 
 107. "By forgiveness of injuries, the learned are purified; by liberality, 
 those who have neglected their duty; by pious meditation, those who 
 have secret faults; by devout austerity, those who best know the Veda." 
 
 After this follow rules for the purification of inanimate things with 
 water, ashes, earth, fire and in various ways. 
 129. "The hand of an artist employed in his art is always pure; so 
 
CODE OF MANU 1025 
 
 is every vendible commodity, when exposed to sale; and that food is 
 always clean, which a student in theology has begged and received; such 
 is the sacred rule. 
 
 147. "By a girl, or by a young woman, or by a woman advanced in 
 years, nothing must be done even in her own dwelling place, according 
 to her mere pleasure. * 
 
 148. "In childhood must a female be dependent on her father; in 
 youth, on her husband; her lord being dead, on her sons; if she have 
 no sons, on the near kinsmen of her husband; if he left no kinsmen,, 
 on those of her father; if she have no paternal kinsmen, on the 
 sovereign; a woman must never seek independence. 
 
 149. "Never let her wish to separate herself from her father, her hus~ 
 band, or her sons; for, by a separation from them, she exposes both 
 families to contempt. 
 
 150. "She must always live with a cheerful temper, with good manage- 
 ment in the affairs of the house, with great care of the household 
 furniture, and with a frugal hand in all her expenses. 
 
 151. "Him, to whom her father has given her, or her brother with 
 the paternal assent, let her obsequiously honour, while he lives; and,, 
 when he dies, let her never neglect him, 
 
 152. "The recitation of holy texts, and the sacrifice ordained by the 
 lord of creatures, are used in marriages for the sake of procuring good 
 fortune to brides; but the first gift, or troth plighted, by the husband,, 
 is the primary cause and origin of marital dominion. 
 
 153- "When the husband has performed the nuptial rites with texts 
 from the Veda, he gives bliss continually to his wife here below, both 
 in season and out of season; and he will give her happiness in the next 
 world. 
 
 154. "Though inobservant of approved usages, or enamored of another 
 woman, or devoid of good qualities, yet a husband must constantly be 
 revered as a god by a virtuous wife. 
 
 155. "No sacrifice is allowed to women apart from their husbands, 
 no religious rite, no fasting ; as far only as a wife honours her lord, so far 
 she is exalted in heaven. 
 
 156. "A faithful wife, who wishes to attain in heaven the mansion 
 of her husband, must do nothing unkind to him, be he living or dead. 
 
 157. "Let her emaciate her body, by living voluntarily on pure flowers, 
 roots, and fruit ; but let her not, when her lord is deceased, even pronounce 
 the name of another man. 
 
 158. "Let her continue till death forgiving all injuries, performing 
 harsh duties, avoiding every sensual pleasure, and cheerfully practising 
 the incomparable rules of virtue, which have been followed by such 
 women, as were devoted to one only husband. 
 
 159. "Many thousands of Brahmans, having avoided sensuality from 
 
I026 APPENDIX 
 
 their early youth, and having left no issue in their families, have 
 ascended, nevertheless, to heaven; • 
 
 i6o. "And, like those abstemious men, a virtuous wife, ascends to 
 heaven, though she have no child, if, after the decease of her lord, 
 she devote herself to pious austerity: 
 
 i6i. "But, a widow, who, from a wish to bear children, slights her 
 deceased husband by marrying again, brings disgrace on herself here 
 below, and shall be excluded from the seat of her lord. 
 
 162. "Issue, begotten on a woman by any one other than her husband, 
 is here declared to be no progeny of hers; no mote than a child begotten 
 on the wife of another man, belongs to the begetter: nor is a second 
 husband allowed, in any part of this code, to a virtuous woman. 
 
 167. "A twice-born man versed in sacred ordinances, must burn, with 
 hallowed fire and fir implements of sacrifice, his wife dying before him, 
 if she was of his own class, and lived by these rules : 
 
 168. "Having thus kindled sacred fires, and performed funeral rites 
 to his wife, who died before him, he may marry again, and again light 
 the nuptial fire." 
 
 Chapter 6 is entitled, "On Devotion; or on the Third and Fourth 
 Orders." 
 
 2. "When the father of a family perceives his muscles become flaccid 
 and his hair gray, and sees the child of his child, let him then seek 
 refuge in a forest: 
 
 3. "Abandoning all food eaten in towns, and all his household utensils, 
 let him repair to the lonely woods, committing the care of his wife to 
 her sons ; or accompanied by her, if she choose to attend him. 
 
 5. "Let him take up consecrated fire, and all his domestic imple- 
 ments, of making oblations to it, and, departing from the town to the 
 forest, let him dwell in it with complete power over his organs of 
 sense and of action. 
 
 5. "With many sorts of pure food, such as holy sages used to eat, 
 with green herbs, roots, and fruit, let him perform the five great sacra- 
 ments before mentioned, introducing them with due ceremonies. 
 
 6. "Let him wear a black antelope hide, or a vesture of bark; let 
 him bathe evening and morning; let him suffer the hairs of his head, 
 his beard, and his nails to grow continually, 
 
 7. "From such food, as himself may eat, let him, to the utmost of 
 his power, make offerings and give alms; and with presents of water, 
 roots, and fruit, let him honour those who visit his hermitage. 
 
 8. "Let him be constantly engaged in reading the Veda ; patient of 
 all extremities, universally benevolent, with a mind intent on the Supreme 
 Being; a perpetual giver, but no receiver of gifts; with tender affection 
 for all animated bodies. 
 
 9. "Let him, as the law directs, make oblations on the hearth with 
 
CODE OF MANU 1027 
 
 three sacred fires ; not omitting in due time the ceremonies to be 
 performed at the conjunction and opposition of the moon. 
 
 10. "Let him also perform the sacrifices ordained in honor of the 
 lunar constellations, make the prescribed offering of new grain, and 
 solemnize holy rites every four months, and at the winter and summer 
 solstices. 
 
 13. "Let him eat green herbs, flowers, roots, and fruit, that grow 
 on earth or in water, and the productions of pure trees, and oils formed 
 in fruits. 
 
 14. "Honey and fresh meat he must avoid, and all sorts of mushrooms, 
 the plant bhustrlna, that named sigruca, and the fruit of the sleshmataca. 
 
 16. "Let him not eat the produce of ploughed land, though abandoned 
 by any man, who owns it, nor fruit and roots produced in a town, even 
 though hunger oppress him. 
 
 22. "Let him slide backwards and forwards on the ground; or let him 
 stand a whole day on tip toe; or let him continue in motion rising and 
 sitting alternatively; but at sunrise, at noon, and at sunset, let him go 
 to the waters and bathe. 
 
 23. "In the hot season, let him sit exposed to five fires, four blazing 
 around him with the sun above; in the rains, let him stand uncovered, 
 without even a mantle, where the clouds pour the heaviest showers ; in 
 the cold season let him wear humid vesture; and let him increase by 
 degrees the austerity of his devotion: 
 
 24. "Performing his ablution at the three Savanas, let him give satis- 
 faction to the manes and to the gods ; and, enduring harsher and harsher 
 mortifications, let him dry up his bodily frame. 
 
 25. "Then, having deposited his holy fires, as the law directs, in his 
 mind, let him live without external fire, without a mansion, wholly silent, 
 feeding on roots and fruit; 
 
 26. "Not solicitous for the means of gratifications, chaste as a student, 
 sleeping on the bare earth, in the haunts of pious hermits, without one 
 selfish affection, dwelling on roots of trees. 
 
 27. "From devout Brahmans let him receive alms to support life, or 
 from other housekeepers of twice-born classes, who dwell in the forests : 
 
 28. "Or the hermit may bring food from a town, having received 
 it in a basket of leaves, in his naked hand, or in a postsherd; anjd then 
 let him swallow eight mouthfuls. 
 
 32. "A Brahman, having shuffled off his body by any of those modes, 
 which great sages practised, and becoming void of sorrow and fear, 
 rises in exaltation in the divine essence. 
 
 SS. "Having thus performed religious acts in a forest during the 
 third portion of his life, let him become a Sannydsi for the fourth portion 
 of it, abandoning all sensual affections, and wholly reposing in the 
 Supreme Spirit : 
 
I028 APPENDIX 
 
 34. "The man, who has passed from order to order, has made oblations 
 to fire on his respective changes of state, and has kept his members 
 in subjection, but, tired with so long a course of giving alms and making 
 offerings, thus reposes himself entirely on God, s:hall be raised after 
 death to Glory. 
 
 44. "An earthen water pot, the roots of large trees, coarse vesture,, 
 total solitude, equanimity toward all creatures, these are the characteristics 
 of a Brahman set free. 
 
 45. "Let him not wish for death; let him not wish for life; let him 
 expect his appointed time, as a hired servant expects his wages. 
 
 46. "Let him advance his foot purified by looking down, lest he touch 
 anything impure; let him drink water purified by straining with a cloth,, 
 lest he hurt some insect; let hini, if he chuse to speak, utter words, 
 purified by truth; let him by all means keep his heart purified. 
 
 47. "Let him bear a reproachful speech with patience ; let him speak 
 reproachfully to no man; let him not, on account of his frail and 
 feverish body, engage in hostility with any one living. 
 
 48. "With an angry man let him not in his turn be angry; abused, 
 let him speak mildly; nor let him utter a word relating to vain illusory 
 things and confined within seven gates, the five organs of sense, the 
 chart and the intellect; or this world with three above and three below it. 
 
 49. "Delighted with meditating on the Supreme Spirit, sitting fixed 
 in such meditation, without needing anything earthly, without one sensual 
 desire, without any companion but his own soul, let him live in this 
 world seeking the bliss of the next. 
 
 'j2. "Let him thus, by such suppressions of breath, burn away his 
 offenses; by reflecting intensely on the steps of ascent to beatitude, let 
 him destroy sin; by coercing his members, let him restrain all sensual 
 attachments; by meditating on the intimate union of his own soul and 
 the divine essence, let him extinguish all qualities repugnant to the 
 nature of God. 
 
 75. "By injuring nothing animated, by subduing all sensual habits, by- 
 devout rites ordained in the Veda, and by rigorous mortifications, men 
 obtain, even in this life, the state of beatitude. 
 
 '](i. "A mansion with bones for its rafters and beams; with nerves- 
 and tendons, for cords; with muscles and blood, for mortar; with skin 
 for its outward covering; filled with no sweet perfume, but loaded with 
 feces and urine; 
 
 yy. "A mansion infested by age and by sorrow, the seat of malady, 
 harassed with pains, haunted with the quality of darkness, and incapable 
 of standing alone; such a mansion of the vital soul let its occupier 
 always cheerfully quit: 
 
 78. "As a tree leaves the bank of a river, when it falls in, or as a 
 bird leaves the branch of a tree at his pleasure, thus he, who leaves. 
 
CODE OF MANU 1029 
 
 his body by necessity or by legal choice, is delivered from the ravening 
 shark, or crocodile, of the world. 
 
 79. "Letting his good acts descend (by the law of the Veda) to those, 
 who love him, and his evil deeds, to those, who hate him, he may attain, 
 through devout meditation, the eternal spirit. 
 
 87. "The student, the married man, the hermit, and the anchorite are 
 the offspring, though in four orders, of married men keeping house. 
 
 88. "And all, or even any, of those orders, assumed in their turn, 
 according to the sacred ordinances, lead the Brahman, who acts by 
 the preceding rules, to the highest mansion : 
 
 89. "But of all those, the housekeeper, observing the regulations of 
 the Srtiti and Smriti, may be called the chief; since he supports the three 
 other orders. 
 
 90. "As all rivers, female and male, run to their determined places 
 in the sea, thus men of all other orders, repair to their fixed place in 
 the mansion of the house-keeper. 
 
 91. "By Brahmans, placed in these four orders, a tenfold system 
 of duties must ever be sedulously practiced. 
 
 92. "Content, returning good for evil, resistance to sensual appetites, 
 abstinence from illicit gain, purification, coercion of the organs, knowledge 
 of scripture, knowledge of the Supreme Spirit, veracity, and freedom 
 from wrath, form their tenfold system of duties. 
 
 93. "Such Brahmans, as attentively read the ten precepts of duty and 
 after reading, carefully practice them, attain the most exalted condition. 
 
 94. "A Brahman, having practiced, with organs under command, this 
 tenfold system of duty, having heard the Upanishads explained, as the 
 law directs, and who has discharged his three debts, may become an 
 anchorite, in the house of his son, according to the Veda ; 
 
 95. "And, having abandoned all ceremonial acts, having expiated al! 
 his oft'enses, having obtained a command over his organs, and having: 
 perfectly understood the scripture, he may live at his ease, while the 
 household affairs are conducted by his son." 
 
 Chapter 7 is entitled, "On Government, and Public Law ; or on the 
 Military Class. The spirit of this chapter will be found to differ materially 
 from that of prior ones. It deals with the practical problems of 
 government by a king. 
 
 2. "By a man of the military class, who has received in due form 
 the investiture which the Veda prescribes, great care must be used to 
 maintain the whole assemblage of laws. 
 
 3. "Since, if the world has no king, it would quake on all sides 
 through fear, the ruler of this universe, therefore, created a king, for 
 the maintenance of this system, both religious and civil, 
 
 4. "Forming him of eternal particles drawn from the substance of 
 
I030 APPENDIX 
 
 Indra, Pavana, Yama, Surya, of Agni, and Varuna, of Chandra and 
 Cuvera : 
 
 5. "And since a king was composed of particles drawn from those 
 chief guardian deities, he consequently surpasses all mortals in glory. 
 
 6. "Like the sun, he burns eyes and hearts; nor can any human creature 
 on earth even gaze on him. 
 
 7. "He is fire and air; he, both sun and moon; he, the god of criminal 
 justice; he, the genius of wealth; he, the regent of waters; he, the lord 
 of the firmament. 
 
 8. "A king, even though a child, must not be treated lightly, from an 
 idea that he is a mere mortal: no, he is a powerful divinity, who appears 
 in a human shape. 
 
 9. "Fire burns only one person, who carelessly goes too near it ; but 
 the fire of a king in wrath burns a whole family, with all their cattle 
 and goods. 
 
 10. "Fully considering the business before him, his own force, and the 
 place, and the time, he assumes in succession all sorts of forms, for the 
 sake of advancing justice. 
 
 11. "He, sure, must be the perfect essence of majesty, by whose favor 
 Abundance rises on her lotos, in whose valour dwells conquest; in whose 
 anger, death. 
 
 12. "He, who shews hatred of the king, through delusion of mind, 
 will certainly perish, for speedily will the king apply his heart to the man's 
 perdition. 
 
 13. "Let the king prepare a just compensation for the good and a 
 a just punishment for the bad: the rule of strict justice let him never 
 transgress. 
 
 14. "For his use Brahma formed in the beginning of time the genius 
 of punishment, with a body of pure light, his own son, even abstract 
 criminal justice, the protector of all created things. 
 
 15. "Through fear of that genius, all sentient bemgs, whether fixed 
 or locomotive, are fitted for natural enjoyments and swerve not for duty. 
 
 16. "When the king, therefore, has fully considered place and time, 
 and his own strength, and the divine ordinance, let him justly inflict 
 punishment on all those, who act unjustly. 
 
 17. "Punishment is an active ruler, he is the true manager of public 
 affairs ; he is the dispenser of laws ; and wise men call him the sponsor 
 of all the four orders for the discharge of their several duties. 
 
 18. "Punishment governs all mankind ; punishment alone preserves 
 them ; punishment wakes, while their guards are asleep ; the wise consider 
 punishment as the perfection of justice. 
 
 19. "When rightly and considerately inflicted, it makes all the people 
 happy; but, inflicted without full consideration, it wholly destroys them all. 
 
 26. "Holy sages consider as a fit dispenser of criminal justice, that 
 
CODE OF MANU 1031 
 
 king, who invariably speaks truth, who duly considers all cases, who 
 understands the sacred books, who knows the distinction of virtue, 
 pleasure, and riches ; 
 
 2^. "Such a king, if he justly inflict legal punishments, greatly in- 
 creases those three means of happiness; but punishment itself shall 
 destroy a king, who is crafty, voluptuous, and wrathful; 
 
 28. "Criminal justice, the bright essence of majesty, and hard to be 
 supported by men with unimproved minds, eradicates a king, who swerves 
 from his duty, together with all his race : 
 
 29. "Punishment shall overtake his castles, his territories, his peopled 
 land, with all fixed and movable things, that exist on it: even the gods 
 and the sages, who lose their oblations, will be afflicted and ascend to 
 the sky. 
 
 30. "Just punishment cannot be inflicted by an ignorant and covetous 
 king, who has no wise and virtuous assistant, whose understanding has 
 not been improved, and whose heart is addicted to sensuality : 
 
 31. "By a king, wholly pure, faithful to his promise, observant of the 
 scriptures, with good assistants and sound understanding, may punishment 
 be justly inflicted. 
 
 -i^^. "Let him in his own domains act with justice, chastise foreign 
 foes with rigour, behave without duplicity to his affectionate friends, 
 and with lenity to Brahmans. 
 
 2^"]. "Let the king, having risen at early dawn, respectfully attend to 
 Brahmans, learned in the three Vedas, and in the science of ethics ; and 
 by their decision let him abide. 
 
 38. "Constantly must he show respect to Brahmans, who have grown 
 old, both in years and in piety, who know the scriptures, who in body 
 and mind are pure ; for he, who honours the aged, will perpetually be 
 honoured even by cruel demons: 
 
 39. "From them, though he may have acquired modest behavior by 
 his own good sense and by study, let him continually learn habits of 
 rriodesty and composure ; since a king, whose demeanor is humble and 
 composed, never perishes, 
 
 40. "While through want of such humble virtue, many kings have 
 perished with all their possessions, and, through virtue united with 
 modesty, even hermits have obtained kingdoms. 
 
 43. "From those, who know the three Vedas, let him learn the triple 
 doctrine comprised in them, together with the primeval science of criminal 
 justice and sound policy, the systean of logic and metaphysics, and 
 sublime theological truths; from the people he must learn the theory of 
 agriculture, commerce, and other practical arts. 
 
 44. "Day and night must he strenuously exert himself to gain complete 
 victory over his own organs; since that king alone whose organs are 
 completely subdued, can keep his people firm to their duty. 
 
I032 APPENDIX 
 
 45. "With extreme care let him shun eighteen vices, ten proceeding 
 from love of pleasure, eight springing from wrath, and all ending in 
 misery. 
 
 46. "Since a king, addicted to vices arising from love of pleasure must 
 lose both his wealth and his virtue, and, addicted to vices arising from 
 anger, he may lose even his life from the public resentment. 
 
 47. "Hunting, gaming, sleeping by day, censuring rivals, excesses with 
 woman, intoxication, singing, instrumental music, dancing, and useless 
 travel, are the tenfold set of vices produced by love of pleasure: 
 
 48. "Talebearing, violence, insiduous wounding, envy, detraction, unjust 
 seizure of property, reviling, and open assault are in like manner the 
 eightfold set of vices, to which anger gives birth. 
 
 54. "The king must appoint seven or eight ministers, who must be 
 sworn by touching a sacred image and the like; men, whose ancestors 
 were servants of kings ; who are versed in the holy books ; who are 
 personally brave; who are skilled in the use of weapons; and whose 
 lineage is noble. 
 
 56. "Let him perpetually consult with those ministers on peace and 
 war, on his forces, on his revenues, on the protection of his people, and 
 on the means of bestowing aptly the wealth which he has acquired : 
 
 57. "Having ascertained the several opinions of his counsellors first 
 apart and then collectively, let him do what is most beneficial for him 
 in publick affairs. 
 
 58. "To one learned Brahman, distinguished among them all, let the 
 king impart his momentous counsel, relating to six principal articles. 
 
 59. "To him, with full confidence, let him intrust all transactions; 
 and with him, having taken his final resolution, let him begin all his 
 measures. 
 
 61. "As many officers as the due performance of his business requires, 
 not slothful men, but active, able, and well instructed, so many and no 
 more, let him appoint. 
 
 63. "Let him likewise appoint an ambassador versed in all the Sdstras, 
 who understands hints, external signs, and actions, whose hand and heart 
 are pure, whose abilities are great and whose birth was illustrious. 
 
 64. "That royal ambassador is applauded most, who is generally be- 
 loved, pure within and without, dexterous in business, and endued with 
 an excellent memory; who knows countries and times, is handsome, 
 intrepid, and eloquent. 
 
 65. "The forces of the realm must be immediately regulated by the 
 commander in chief; the actual infliction of punishment, by the officers 
 of criminal justice; the treasury and the country, by the king himself; 
 peace and war, by the ambassador. 
 
 88. "Never to recede from combat, to protect the people, and to 
 honour the priest, is the highest duty of kings and insures their felicity. 
 
CODE OF MANU 1033 
 
 89. "Those rulers of the earth, who, desirous of defeating each other, 
 exert their utmost strength in battle, without ever averting their faces, 
 ascend after death directly to heaven. 
 
 90. "Let no man, engaged in combat, smite his foe with sharp weapons 
 concealed in wood, nor with arrows mischievously barbed, nor with 
 poisoned arrows, nor with darts blazing with fire; 
 
 91. "Nor let him in a car or on horseback strike his enemy alighted 
 on the ground; nor an effeminate man; nor one, who sues for life with 
 closed palms; nor one, whose hair is loose and obstructs his sight; nor 
 one who sits down fatigued; nor one who says, "I am thy captive;" 
 
 92. "Nor one, who sleeps; nor one, who has lost his coat of mail; 
 nor one, who is naked; nor one, who is disarmed; nor one, who is 
 a spectator; but not a combatant; nor one, who is fighting with another 
 man. 
 
 93. "Calling to mind the duty of honourable men, let him never slay 
 one, who has broken his weapon; nor one, who is afflicted with private 
 sorrow ; nor one, who has been grievously wounded ; nor one, who is 
 terrified; nor one, who turns his back. 
 
 94. "The soldier indeed, who fearing and turning his back, happens 
 to be slain by his foes in an engagement, shall take upon himself all the 
 sin of his commander, whatever it be. 
 
 95. "And the commander shall take to himself the fruit of all the 
 good conduct, which the soldier, who turns his back and is killed, had 
 previously stored up for a future life. 
 
 96. "Cars, horses, elephants, umbrellas, habiliments, except the jewels 
 which may adorn them, grain, cattle, women, all sorts of liquids and 
 metals, except gold and silver, are the lawful prizes of the man who 
 takes them in war; 
 
 97. "But of those prizes, the captors must lay the most valuable 
 before the king; such is the rule in the Veda concerning them; and 
 the king should distribute among the whole army what has not been 
 separately taken." 
 
 Rules to be learned in preparing for war are then given : 
 
 107. "When he thus has prepared himself for conquest, let him re- 
 duce all opposers to submission by negotiation and three other expedients, 
 namely, presents, division, and force of arms: 
 
 108. "If they cannot be restrained by the three first methods, then 
 let him, firmly but gradually, bring them to subjection by military force. 
 
 109. "Among those four modes of obtaining success, the wise prefer 
 negotiation and war for the exaltation of kingdoms. 
 
 no. "As a husbandman plucks up weeds and preserves his corn, thus 
 let a king destroy his opponents and secure his people. 
 
 III. "That king, who, through weakness of intellect, rashly oppresses 
 
I034 APPENDIX 
 
 his people, will, together with his family, be deprived both of kingdom 
 and life. 
 
 114. "Let him place, as the protectors of his realm, a company of 
 guards, commanded by an approved officer, over two, three, five, or 
 a hundred districts, according to their extent. 
 
 115. "Let him appoint a lord of one town with its district, a lord of 
 ten towns, a lord of twenty, a lord of a hundred, and a lord of a 
 thousand. 
 
 116. "Let the lord of one town certify of his own accord to the 
 lord of ten towns any robberies, tumults, or other evils, which arise 
 in his district, and which he cannot suppress; and the lord of ten, to 
 the lord of twenty: 
 
 117. "Then let the lord of twenty towns notify them to the lord 
 of a hundred; and let the lord of a hundred transmit the information 
 himself to the lord of a thousand townships. 
 
 118. "Such food, drink, wood, and other articles, as by law should be 
 given each day to the king by the inhabitants of the township, let the 
 lord of one tawn receive as his perquisite: 
 
 119. "Let the lord of ten towns enjoy the produce of two ploughlands, 
 or as much ground as can be tilled with two ploughs, each drawn by 
 six bulls ; the lord of twenty that of ten ploughlands ; the lord of a 
 hundred, that of a village or small town; the lord of a thousand that 
 of a large town. 
 
 120. "The affairs of those townships, either jointly or separately trans- 
 acted, let another minister of the king inspect ; who should be well 
 affected and by no means remiss, 
 
 121. "In every large town or city, let him appoint one superintendent 
 of all affairs, elevated in rank, formidable in power, distinguished as a 
 planet among stars : 
 
 122. "Let that governor from time to time survey all the rest in 
 person, and, by means of his emissaries, let him perfectly know their 
 conduct in their several districts. 
 
 123. "Since the servants of the king, whom he has appointed guardians 
 of districts, are generally knaves, who seize what belong to other men, 
 from such . knaves let him defend his people : 
 
 124. "Of such evil-minded servants, as wring wealth from subjects 
 attending them on business, let the king confiscate all the possessions, 
 and banish them from his realm. 
 
 125. "For women, employed in the service of the king, and for his 
 whole set of menial servants, let him daily provide a maintenance, in 
 proportion to their station and to their work : 
 
 126. "One pana of copper must be given each day as wages to the 
 lowest servant, with two cloths for apparel every half-year, and a 
 drdna of grain every month; to the highest must be given wages in the 
 ratio of six to one. 
 
CODE OF MANU 1035 
 
 127. "Having ascertained the rates of purchase and sale, the length 
 of the way, the expenses of food and condiments, the charges of securing 
 the goods carried, and the neat profits of trade, let the king oblige 
 traders to pay taxes on their saleable commodities. 
 
 128. "After a full consideration, let the king so levy those taxes 
 continually in his dominions, that both he and the merchant may receive 
 a just compensation for their several acts. 
 
 129. "As the leech, the suckling calf, and the bee, take their natural 
 food by little and little, thus must the king draw from his kingdom 
 an annual revenue. 
 
 130. "Of cattle, of gems, of gold and silver, added each year to the 
 capital stock, a fiftieth part may be taken by the king; of grain an eighth 
 part, a sixth, or a twelfth, according to the difference of the soil, and 
 the labour necessary to cultivate it. 
 
 131. **He may also take a sixth part of the clear annual increase of 
 trees, flesh-meat, honey, clarified butter, perfumes, medical substances, 
 liquids, flowers, roots, and fruit; 
 
 132. "Of gathered leaves, potherbs, grass, utensils, made with leather 
 or cane, earthen pots, and all things made of stone. 
 
 133- "A king even though dying with want, must not receive any tax 
 from a Brahman learned in the Vedas, nor suffer such a Brahman, 
 residing in his territories, to be afflicted with hunger. 
 
 149. "At the time of consultation, let him remove the stupid, the 
 dumb, the blind, and the deaf, talking birds, decrepit old men, women, 
 and infidels, the diseased and the maimed; 
 
 150. "Since those, who are disgraced in this life by reason of sins 
 formerly committed, are apt to betray secret council; so are talking 
 birds ; and so above all are women ; them he must, for that reason, 
 diligently remove." 
 
 Many rules for the prudent management of military affairs are given, 
 so that wars may be prosecuted at favorable times, and an attack 
 from an enemy of superior force be avoided, and that alliances may be 
 formed with those whose aid is desirable and not dangerous. Rules also 
 are given for the management of forces in battle which do not appear 
 of great practical utility. 
 
 197. "Let him secretly bring over to his party all such leaders as he 
 can safely bring over; let him be informed of all that his enemies are 
 doing; and when a fortunate moment is offered by heaven, let him give 
 battle, pushing on to conquest and abandoning fear : 
 
 198. "Yet he should be more sedulous to reduce his enemy by nego- 
 tiation, by well applied gifts, and by creating divisions, using either 
 all or some of those methods, than by hazarding at any time decisive 
 action. 
 
 199. "Since victory or defeat are not surely foreseen on either side, 
 
1036 APPENDIX 
 
 when two armies engage in the held ; let the king then, if other expedients 
 prevail, avoid a pitched battle. 
 
 200. "But, should there be no means of applying the three before- 
 mentioned expedients, let him, after due preparation, tight so valiantly 
 that his enemy may be totally routed. 
 
 201. "Having conquered a country, let him respect the deities adored 
 in it, and their virtuous priests; let him also distribute largesses to 
 the people, and cause a full exemption from terror to be loudly 
 proclaimed. 
 
 202. "When he has perfectly ascertained the conduct and intentions 
 of all the vanquished, let him fix in that country a prince of the royal 
 race, and give him precise instructions. 
 
 203. "Let him establish the laws of the conquered nation as declared 
 in their books; and let him gratify the new prince with gems and other 
 precious gifts. 
 
 204. "The seizure of desirable property, though it cause hatred, and 
 the donation of it, though it cause love, may be laudable or blameable 
 on different occasions: 
 
 205. "All this conduct of human affairs is considered as dependent 
 on acts ascribed to the deity, and on acts ascribed to men; now the 
 operations of the deity cannot be known by any intenseness of thought, 
 but those of men may be clearly discovered." 
 
 The king is admonished to take precautions for his own personal 
 safety against assassination and poison and to be constantly on his guard 
 •to frustrate the schemes of his enemies. 
 
 Chapter 8 is "On Judicature ; and on Law, private and Criminal." 
 
 1. "A king, desirous of inspecting judicial proceedings, must enter 
 his court of justice, composed and sedate in his demeanor, together 
 with Brahmans and counsellors, who know how to give him advice. 
 
 2. "There, either sitting or standing, holding forth his right arm, 
 without ostentation in his dress and ornaments, let him examine the 
 affairs of litigant parties. 
 
 3. "Each day let him decide causes, one after another, under the 
 eighteen principal titles of law, by arguments and rules drawn from 
 local usages, and from written codes : 
 
 4. "Of those titles, the first is debt, on loans for consumption, the 
 second, deposits, and loans for use; the third, sale without ownership; 
 the fourth, concerns among partners; the fifth, subtraction of what has 
 been given; 
 
 5. "The sixth, non-payment of wages or hire ; the seventh, non-per- 
 formance of agreements; the eighth, rescission of sale and purchase; 
 the ninth, disputes between master and servant; 
 
 6. "The tenth, contests on boundaries; the eleventh and twelfth, 
 
CODE OF MANU 1037 
 
 assault and slander; the thirteenth, larceny; the fourteenth, robbery and 
 other violence; the fifteenth, adultery; 
 
 ,,,7. "The sixteenth, altercation between man and wife, and their several 
 duties; the seventeenth, the law of inheritance; the eighteenth, gaming 
 with dice and with living creatures; these eighteen titles of law are 
 settled as the ground work of all judicial procedure in this world. 
 
 8. "Among men, who contend for the most part on the titles just 
 mentioned, and on a few miscellaneous heads not comprised under 
 them, let the king decide causes justly, observing primeval law; 
 
 9. "But when he cannot inspect such affairs in person, let him 
 appoint, for the inspection of them, a Brahman of eminent learning; 
 
 10. "Let that chief judge, accompanied by three assessors, fully 
 consider all causes brought before the king; and, having entered the 
 court room, let him sit or stand, but not move backwards and forwards. 
 
 11. "In whatever country these Brahmans, particularly skilled in the 
 three several Vedas, sit together with the very learned Brahman appointed 
 by the king, the wise call that assembly the court of Brahma with four 
 faces. 
 
 12. "When justice, having been wounded by iniquity, approaches the 
 court, and the judges extract not the dart, they also shall be wounded by it. 
 
 13. "Either the court must not be entered by judges, parties, and 
 witnesses, or law and truth must be openly declared : that man is criminal 
 who either says nothing, or says what is false and unjust. 
 
 14. "When justice is destroyed by iniquity, and truth by false evidence, 
 the judges, who basely look on without giving* redress, shall also be 
 destroyed. 
 
 18. "Of injustice in decisions, one-quarter falls on the party in the 
 cause; one-quarter on his witnesses; one-quarter on all the judges; and 
 one-quarter on the king; 
 
 20. '*A Brahman supported only by his class, and one barely reputed 
 a Brahman, but without performing any sacerdotal acts, may, at the 
 king's pleasure, interpret the law to him, so may the two middle classes; 
 but a Sudra, in no case whatever. 
 
 23. "Let the king or his judge, having seated himself on the bench, 
 his body properly clothed and his mind attentively fixed, begin with long 
 reverence' to the deities, who guard the world; and then let him enter 
 on the trial of causes : 
 
 24. "Understanding what is expedient or inexpedient, but considering 
 only what is law or not law, let him examine all disputes between parties, 
 in the order of their several classes. 
 
 25. "By external signs let him see through the thoughts of men; by 
 their voice, colour, countenance, limbs, eyes, and action: 
 
 26. "From the limbs, the look, the motion of the body, the gesticulation, 
 the speech, the changes of the eye and the. face, are discovered, the 
 internal workings of the mind. 
 
IQ38 APPENDIX 
 
 2^. "The property of a student and an infant, whether by descent or 
 otherwise, let the king hold in his custody, until the owner shall have 
 ended his studentship, or until his infancy shall have ceased in his 
 sixteenth year. 
 
 28. "Equal care must be taken of barren women, of women without 
 sons, whose husbands have married other wives, of women without 
 kindred, or whose husbands are in distant places, of widows true to 
 their lords, and of women afflicted with illness. 
 
 29. "Such kinsmen, as, by any pretence, appropriate the fortunes of 
 women during their lives, a just king must punish with a severity due 
 to thieves. 
 
 34. "Property lost by one man, and found by another, let the king 
 secure, by committing it to the care of trustworthy men ; and those, 
 whom he shall convict of stealing it, let him cause to be trampled on by 
 an elephant. 
 
 41. "A king, who knows the revealed law, must enquire into the 
 particular laws of classes, the laws of usages of districts, the customs 
 of traders, and the rules of certain families,, and establish their peculiar 
 laws, if they be not repugnant to the law of God; 
 
 42. "Since all men, who mind their own customary ways of proceeding 
 and are fixed in the discharge of their several duties, become united 
 by affection with the people at large, even though they dwell far asunder. 
 
 43. "Neither the king himself nor his officers must ever promote 
 litigation : nor ever neglect a law-suit instituted by others. 
 
 47. "When a creditor sues before him for the recovery of his right from 
 a debtor, let him cause the debtor to pay what the creditor shall prove due. 
 
 48. "By whatever lawful means a creditor may have gotten possession 
 of his own property, let the king ratify such payment by the debtor^ 
 though obtained even by compulsory means. 
 
 49. "By the mediation of friends, by suit in court, by artful management, 
 or by distress, a creditor may recover the property lent; and, fifthly, by 
 legal force. 
 
 50. "That creditor, who recovers his right from his debtor, must not 
 be rebuked by the king for retaking his own property. 
 
 51. "In a suit for a debt, which the defendant denies, let him award 
 payment to the creditor of what, by good evidence, he shall prove due, 
 and exact a small fine, according to the circumstances of the debtor. 
 
 52. "On the denial of a debt, which the defendant has in court been 
 required to pay, the plaintiff must call a witness, who was present at 
 the place of the loan, or produce other evidence, as a note and the like. 
 
 53. "The plaintiff, who calls a witness not present at the place, where 
 the contract was made, or, having knowingly called him, disclaims him 
 as his witness ; or who perceives not, that he asserts confused and 
 contradictory facts ; 
 
 54. "Or who, having stated what he designs to prove, varies afterwards 
 
CODE OF MANU 1039 
 
 from his case, or who, being questioned on a fact, which he had before 
 admitted, refuses to acknowledge that very fact; 
 
 55. "Or who has conversed with the witness in a place unfit for such 
 conversation; or who declines answering a question properly put; or 
 who departs from the court; 
 
 56. "Or who being ordered to speak, stands mute; or who proves not 
 what he has alleged; or who knows not what is capable or incapable 
 of proof; such a plaintiff shall fail in that suit; 
 
 57. "Him who has said "I have witnesses," and, being told to produce 
 them, produces them not, the judge must on this account declare 
 nonsuited. 
 
 58. "If the plaintiff delay to put in his plaint; he may, according to 
 the nature of the case, be corporally punished or justly amerced; and, 
 if the defendant plead not within three fortnights, he is by law condemned. 
 
 59. "In the double of that sum, which the defendant falsely denies, 
 or on which the complainant falsely declares, shall these two men, wil- 
 fully offending against justice, be fined by the king. 
 
 60. "When a man has teen brought into court by a suitor for property, 
 and, being called on to answer, denies the debt, the cause should be 
 decided by the Brahman who represents the king, having heard three 
 witnesses at least. 
 
 61. "What sort of witnesses must be produced by creditors and others 
 on the trial of causes, I will comprehensively declare; and in what 
 manner those witnesses must give true evidence. 
 
 62. "Married house-keepers, men with male issue, inhabitants of the 
 same district, either of the military, the commercial, or the servile class, 
 are competent, when called by the party, to give their evidence; not any 
 persons indiscriminately, except in such cases of urgency as will soon 
 be mentioned. 
 
 63. "Just and sensible men of all the four classes may be witnesses 
 on trials ; men, who know their whole duty, and are free from convetous- 
 ness: but men of an opposite character the judge must reject. 
 
 64. "Those must not be admitted who have a pecuniary interest; nor 
 familiar friends, nor menial servants; nor enemies; nor men formerly 
 perjured; nor persons grievously diseased, nor those, who have committed 
 heinous offenses. 
 
 65. "The king cannot be made a witness; nor cooks, and the like 
 mean artificers ; nor public dancers and singers : nor a priest of deep 
 learning in scripture; nor a student in theology; nor an anchoret secluded 
 from all worldly connexions ; 
 
 (:^. "Nor one wholly dependent; nor one of bad fame; nor one, who 
 follows a cruel occupatiop ; nor one, who acts openly against the law ; 
 nor a decrepit old man ; nor a child ; nor one man only ; unless he be 
 distinguished for virtue; nor a wretch of the lowest mixed class; nor 
 one, who has lost the organs of sense; 
 
I040 APPENDIX 
 
 67. "Nor one extremely aggrieved ; nor one intoxicated ; nor a madman ; 
 nor one tormented with hunger or thirst ; nor one oppressed by fatigue ; 
 nor one excited by lust; nor one inflamed with wrath; nor one who has 
 been convicted of theft. 
 
 68. ''Women should regularly be witnesses for women; twice-born 
 for men alike twice-born; good servants and mechanics, for servants 
 and mechanics; and those of the lowest race, for those of the lowest; 
 
 69. "But any person whatever, who has positive knowledge of trans- 
 actions in the private apartments of a house, or in a forest, or at a 
 time of death, may give evidence between the parties : 
 
 70. "On failure of witnesses duly qualified, evidence may in such cases 
 be given by a woman, by a child, or by an aged man, by a pupil, by & 
 kinsman, by a slave, or by a hired servant; 
 
 71. "Yet of children, of old men, and of the diseased, who are all apt 
 to speak untruly, the judge must consider the testimony as weak; and 
 much more, that of men with disordered minds : 
 
 ^2. "In all cases of violence, of theft and adultery, of defamation and 
 assault, he must not examine too strictly the competence of witnesses. 
 
 yZ' "If there be contradictory evidence, let the king decide by the 
 plurality of credible witnesses; if equality in number, by superiority in 
 virtue; if parity in virtue, by the testimony of such twice-born men, as 
 have best performed public duties, 
 
 74. "Evidence of what has been seen, or of what has been heard, as 
 slander and the like, given by those who saw or heard it, is admissible; 
 and a witness who speaks truth in those cases, neither deviates from 
 virtue nor loses his wealth ; 
 
 75. "But a witness, who knowingly says anything, before an assembly 
 of good men, different from what he had seen or heard, shall fall head- 
 long, after death, into a region or horror, and he debarred from heaven. 
 
 76. "When a man sees or hears anything, without being then called 
 upon to attest it, yet, if he be afterwards examined as a witness, he must 
 declare it, exactly as it was seen, and as it was heard. 
 
 Tj. "One man, untainted with covetousness and other vices, may 
 in some cases be the sole witness, and will have more weight than 
 many women : because female understandings are apt to waver ; or 
 than many other men, who have been tarnished with crimes. 
 
 'j'^. "What witnesses declare naturally, or without bias, must be re- 
 ceived on trials ; but what they improperly say, from some unnatural bent, 
 is inapplicable to the purposes of justice. 
 
 79. "The witnesses being assembled in the middle of the court-room, 
 tn the presence of the plaintiff and the defendant, let the judge examine 
 them, after having addressed them together in the following manner : 
 
 80. "What ye know to have been transacted in the matter before 
 ts, between the parties reciprocally, declare at large and with truth; 
 for your evidence in this cause is required;" 
 
CODE OF MANU 1041 
 
 The most severe penalties in the present and future incarnations are 
 denounced against false witnesses and fame and beatitude promised 
 to the truthful. 
 
 103. "In some cases, a giver of false evidence from a pious motive, 
 even though he know the truth, shall not lose a seat in heaven: such 
 evidence wise men call the speech of the gods. 
 
 104. "Whenever the death of a man, who had not been a grievous 
 offender, either of the servile, the commercial, the military or the 
 sacerdotal class, would be occasioned by true evidence, from the known 
 rigor of the king, even though the fault arose from inadvertence or 
 error, falsehood may be spoken: it is even preferable to truth. 
 
 105. "Such witnesses must offer, as oblations to Saraswati, cakes 
 of rice and milk addressed to the goddess of speech; and thus will 
 they fully expiate that venial sin of benevolent falsehood. 
 
 106. "Or such a witness may pour clarified butter into the holy fire, 
 according to the sacred rule, hallowing it with the texts called cushmdndd, 
 or with those which relate to Varuna, beginning with ud; or with the 
 three texts appropriated to the water gods. 
 
 107. "A man who labours not .under illness, yet comes not to give 
 evidence in cases of loans and- the like, within three fortnights after 
 due summons, shall take upon himself the whole debt, and pay a tenth 
 part of it as a fine to the king. 
 
 108. "The witness, who has given evidence, and to whom, within 
 seven days after, a misfortune happens from disease, fire, or the death 
 of a kinsman, s-hall be condemned to pay the debt and a fine. 
 
 109. "In cases where no witness can- be had, between two parties 
 opposing each other, the judge may acquire a knowledge of the truth 
 by the oath of the parties; or if he cannot otherwise perfectly ascertain it. 
 
 113. "Let a judge cause a priest to swear by his veracity; a soldier, 
 by his horse, or elephant, and his weapons ; a merchant, by his kine,. 
 grain, and gold; a mechanic or servile man, by imprecating on his own 
 head, if he speak falsely, all possible crimes ; 
 
 114. "Or, on great occasions, let him cause the party to hold fire, or ta 
 dive under water, or severally to touch the heads of his children and wife ; 
 
 139. "A debt being admitted by the defendant, he must pay five in 
 the hundred, as a fine to the king ; but, if it be denied and proved, 
 twice as much, this law was enacted by Manu. 
 
 140. "A lender of money may take, in addition to his capital, the 
 interest allowed by Vasisht'ha, that is, an eighth part of a hundred, or 
 one and a quarter, by the month, if he have a pledge; 
 
 141. "Or, if he have no pledge, he may take two in the hundred by 
 the month, remembering the duty of good men; for, by thus taking 
 two in the hundred, he becomes not a sinner for gain. 
 
 142. "He may thus take in proportion to the risk, and in the direct 
 
I042 APPENDIX 
 
 order of the classes, two in the hundred from a priest, three from a 
 soldier, four from a merchant, and five from a mechanic or servile 
 man, but never more, as interest, by the month. 
 
 143. "If he takes a beneficial pledge, or a pledge to be used for his 
 profit, he must have no other interest on the loan; nor, after a great 
 length of time, or when the profits have amounted to the debt, can he 
 give or sell such a pledge, though he may assign it in pledge to another. 
 
 144. "A pledge to be kept only must not be used by force, that is, 
 against consent: the pawnee so using it must give up his whole interest, 
 or must satisfy the owner, if it be spoiled or worn out, by paying 
 him the original price of it; otherwise, he commits a theft of the pawn. 
 
 145. "Neither a pledge without limit, nor a deposit, are lost to the 
 owner by lapse of time : they are both recoverable, though they have long 
 remained with the bailee. 
 
 146. "A milch cow, a camel, a riding-horse, a bull or other beast, 
 which has been sent to be tamed for labour, and other things used 
 with friendly assent, are not lost by length of time to the owner. 
 
 147. 'In general, whatever chattel the owner sees enjoyed by others 
 for ten years, while, though present, he says nothing, that chattel he 
 shall not recover: 
 
 148. "If he be neither an idiot, nor an infant under the full age of 
 fifteen years, and if the chattel be adversely possessed in a place where 
 he may see it, his property in it is extinct by law, and the adverse 
 possessor shall keep it. 
 
 149. "A pledge, a boundary of land, the property of an infant, a 
 deposit either open or in a chest sealed, female slaves, the wealth of a 
 king, and of a learned Brahman, are not lost in consequence of adverse 
 enjoyment. 
 
 158. "The man, who becomes surety for the appearance of a debtor 
 in this world, and produces him not, shall pay the debt out of his own 
 property ; 
 
 159. "But money, due by a surety, or idly promised to musicians and 
 actresses, or lost at play, or due for spirituous liquors, or what remains 
 unpaid of a fine or toll, the son of the surety or debtor shall not in 
 general be obliged to pay; 
 
 160. "Such is the rule in cases of a surety for appearance or good 
 behavior; but, if a surety for payment should die, the judge may compel 
 even his heirs to discharge the debt. 
 
 162. "If the surety had received money from the debtor, and had 
 enough to pay the debt, the son of him, who so received it, shall dis- 
 charge the debt out of his inherited property: this is a sacred ordinance. 
 
 163. "A contract made by a person intoxicated or insane, or grievously 
 disordered, or wholly dependent, by an infant or a decrepit old man, 
 or in the name of another by a person without authority, is utterly null. 
 
 164. "That plaint can have no effect, though it may be supported 
 
CODE OF MANU 1043 
 
 by evidence, which contains a cause of action inconsistent with positive 
 law or with settled usage. 
 
 165. "When the judge discovers a fraudulent pledge or sale, a fraud- 
 ulent gift and acceptance, or in whatever other case he detects fraud let 
 him annul the whole transaction. 
 
 166. "If the debtor be dead, and if the money borrowed was expended 
 for the use of his family, it must be paid by that family, divided or 
 undivided, out of their own estate. 
 
 167. "Should even a slave make a contract in the name of his absent 
 master for the behoof of the family, that master, whether in his own 
 country or abroad, shall not rescind it. 
 
 168. "What is given by force to a man who cannot accept it legally, 
 what is by force enjoyed, by force caused to be written, and all other 
 things done by force or against free consent, Manu his pronounced 
 void. 
 
 179. "A sensible man should make a deposit with some person of 
 high birth, and of good morals, well acquainted with law, habitually 
 veracious, having a large family wealthy and venerable. 
 
 180. "Whatever thing, and in whatever manner, a person shall deposit 
 in the hands of another, the same thing, and in the same manner ought 
 to be received back by the owner: as the delivery was, so must be 
 the receipt. 
 
 181. "He, who restores not to the depositor, on his request, what 
 has been deposited, may first be tried by the judge in the following 
 manner, the depositor himself being absent. 
 
 182. "On failure of witnesses, let the judge actually deposit gold, 
 or precious things, with the defendant, by the artful contrivance of 
 spies, who have passed the age of childhood, and whose persons are 
 engaging : 
 
 183. "Should the defendant restore that deposit in the manner and 
 shape, in which it was bailed by the spies, there is nothing in his hands 
 for which others can justly accuse him. 
 
 184. "But if he restore not the gold, or precious things, as he ought, 
 to those emissaries, let him be apprehended and compelled to pay the 
 value of both deposits: this is a settled rule. 
 
 189. "If a deposit be seized by thieves, or destroyed by vermin or 
 washed away by water, or consumed by fire, the bailee shall not be 
 obliged to make it good, unless he took of it for himself. 
 
 194. "Regularly a deposit should be produced, the same in kind and 
 quantity as it was bailed, by the same and to the same person, by whom 
 and from whom it was received, and before the same company, who 
 were witnesses to the deposit: he who produces it in another manner, 
 ought to be fined; 
 
 195. "But a thing, privately deposited, should be privately restored 
 by and to the person, by and from whom it was received: as the 
 
I044 APPENDIX 
 
 bailment was, so should be the delivery, according to a rule in the 
 Veda. 
 
 201. "He, who had received a chattel, by purchase in open market,. 
 before a number of men, justly acquires the absolute property, by having 
 paid the price for it, if he can produce the vendor; 
 
 202. "But, if the vendor be not producible, and the vendee prove 
 the public sale, the latter must be dismissed by the king without 
 punishment; and the former owner, who lost the chattel, may take it 
 back by paying the vendee half its value." 
 
 Provision is made for the division of the fees of priests. 
 
 209. "At some holy rites, let the reader of the Yajurveda take the 
 car, and the Brahma, or superintending priest, the horse; or, on another 
 occasion, let the reader of the Rigveda take the horse, and the chanter 
 of the Samaveda receive the carriage, in which the purchased materials 
 of the sacrifice had been brought. 
 
 210. "A hundred cows being distributable among sixteen priests, the 
 four chief, or first set are entitled to near half, or forty-eight; the 
 next four, to half of that number; the third set, to a third part of it; 
 and the fourth set to a quarter: 
 
 215. "That hired servant or workman, who, not from any disorder 
 but from indolence, fails to perform his work according to his agree- 
 ment, shall be fined eight racticas, and his wages or hire shall, not be paid. 
 
 219. "The man, among the traders and other inhabitants of a town 
 or district, who breaks a promise through avarice, though he had taken 
 an oath to perform it, let the king banish from his realm : 
 
 220. "Or, according to circumstances, let the judge, having arrested 
 the promise-breaker, condemn him to pay six nishcas, or four suvernas,. 
 or one satamdna of silver, or all three if he deserve such a fine. 
 
 222. "A man, who has bought or sold anything in this world, that has 
 a fixed price, and is not perishable, as land or metals, and wishes to^ 
 rescind the contract, may give or take back such a thing within ten days; 
 
 223. "But, after ten days, he shall neither give nor take it back: 
 the giver or the taker, except by consent, shall be fined by the king 
 six hundred panas. 
 
 227. "The nuptial texts are a certain rule in regard to wedlock, and' 
 the bridal contract is known by the learned to be complete and irre- 
 vocable on the seventh step of the married pair, hand in hand, after 
 those texts have been pronounced. 
 
 229. "I now will decide exactly, according to principles of law, the 
 contests usually arising from the fault of such as own herds of cattle,, 
 and of such as are hired to keep them. 
 
 230. "By day the blame falls on the herdsman; by night on the owner, 
 if the cattle be fed and kept in his own house; but, if the place of their 
 food and custody be different, the keeper incurs the blame. 
 
CODE OF MAXU 1045 
 
 231. 'That hired servant, whose wages are paid with milk, may, 
 with the assent of the owner, milk the best cow out of ten: such are 
 the wages of herdsmen, unless they be paid in a different mode. 
 
 2^2. "The herdsman himself shall make good the loss of a beast, which 
 through his want of due care has strayed, has been destroyed by rep- 
 tiles or killed by dogs, or has died by falling into a pit; 
 
 233. "But he shall not be compelled to make it good, when robbers 
 have carried it away, if, after fresh proclamation and pursuit, he give 
 notice to his master in a proper place and season." 
 
 Other rules relating to the loss of cattle and trespasses committed 
 by them are given. In order to preserve established boundary lines the 
 planting of trees or placing of stones and other durable monuments 
 is enjoyed and rules for the settlement of disputes regarding boundaries 
 are given. 
 
 267. "A soldier, defaming a priest, shall be fined a hundred panas; 
 a merchant, thus offending, a hundred and fifty, or two hundred, but for 
 such an offense, a mechanic or servile man shall be whipped. • 
 
 268. "A priest shall be fined fifty, if he slander a soldier; twenty-five 
 if a merchant; and twelve if he slander a man of the servile class. 
 
 269. "For abusing one of the same class, a twice-born man shall 
 be fined only twelve; but for ribaldry not to be uttered, even that and 
 every fine shall be doubled. 
 
 270. "A once-born man, who insults the twice-born with gross invec- 
 tives, ought to have his tongue slit; for he sprang from the lowest part 
 of Brahma. 
 
 171. "If he mention their names and classes with contumely, as if he 
 say "Oh Devadatta, thou refuse of Brahmans," an iron style, ten fingers, 
 long, shall be thrust red hot into his mouth. 
 
 279. "With whatever member of a low-born man shall assault or hurt 
 a superior, even that member of his must be slit, or cut more or less, 
 in proportion to the injury; this is an ordinance of Manu. 
 
 280. "He, who raises his hand or staff against another, shall have 
 his hand cut; and he, who kicks another in wrath, shall have an 
 incision made in his foot. 
 
 281. "A man of the lowest class, who shall insolently place himself 
 on the same seat with one of the highest, shall either be banished 
 with a mark on his hinder parts, or the king shall cause a gash to 
 be made on his buttock :" 
 
 Special cases of assaults, negligent and accidental injuries are men- 
 tioned and punishments prescribed where injury results from the fault 
 of any one. 
 
 299. "A wife, a son, a servant, a pupil, and a younger whole brother, 
 may be corrected when they commit faults, with a rope or the small 
 shoot of a cane ; 
 
I046 APPENDIX 
 
 300. "But on the back part only of their bodies, and not on a noble part 
 by any means: he who strikes them otherwise than by this rule, incurs 
 the guilt, or shall pay the fine, of a thief. 
 
 322. "For stealing more than fifty palas, it is enacted that a hand shall 
 be amputated: for less, the king shall set a fine eleven times as much as 
 the value. 
 
 323. "For stealing men of high birth, and women above all, and the 
 most precious gems, as diamonds or rubies, the thief deserves capital 
 punishment. 
 
 325. "For taking kine belonging to priests, and boring their nostrils, 
 or for stealing their other cattle, the offender shall instantly lose half 
 of one foot." 
 
 A considerable list of articles of property is given, for the stealing of 
 which a fine of double the value of the property taken is imposed. 
 
 332. "If the taking be violent, and in the sight of the owner, it 
 is robbery; if privately in his absence, it is only theft; and it is considered 
 as theft, when a man having received anything, refuses to give it back. 
 
 355. "On him, who steals the before-mentioned things, when they are 
 prepared for use, let the king set the lowest amercement of the three; 
 and the same on him, who steals only fire from the temple. 
 
 334. "With whatever limb a thief commits the offense by any means 
 in this world, as if he break a wall with his hand or his foot, even that 
 limb shall the king amputate, for the prevention of a similar crime. 
 
 336. "Where another man of lower birth would be fined one pana, the 
 king shall be fined a thousand, and he shall give the fine to the priests 
 or cast it into the river: this is a sacred rule. 
 
 337. "But the fine of a Sudra for theft shall be eightfold; that of a 
 Vaisya, sixteen fold; that of a Cshatriya, two and thirty fold. 
 
 338. "That of a Brahman, four and sixty fold; or a hundred fold 
 complete or even twice four and sixty fold; each of them knowing the 
 nature of his offense. 
 
 340. "A priest who willingly receives anything, either for sacrificing 
 or instructing, from the hand of a man who had taken what the owner 
 had not given, shall be punished even as the thief. 
 
 348. "The twice-born may take arms, when their duty is obstructed by 
 force ; and when, in some evil time, a disaster has befallen the twice-born 
 classes ; 
 
 349. "And in their own defense; and in a war for just cause; and in 
 defense of a woman; or a priest; he who kills justly commits no crime. 
 
 350. "Let a man, without hesitation, slay another, if he cannot other- 
 wise escape, who assails him with intent to murder, whether young or old, 
 or his preceptor, or a Brahman, deeply versed in the scripture. 
 
 356. "He, who talks with the wife of another man at a place of 
 pilgrimage, in a forest or a grove, or at the confluence of rivers, incurs 
 the guilt of an adulterous inclination: 
 
CODE OF MANU 1047 
 
 357. "To send her flowers or perfumes, to sport and jest with her, 
 to touch her apparel or ornaments, to sit with her on the same couch, 
 are held adulterous acts on his part ; 
 
 358. "To touch a married woman on her breasts or any other place, 
 which ought not to be touched, or being touched unbecomingly by her, 
 to bear it complacently, are adulterous acts with mutual assent. 
 
 359. "A man of the servile class, who commits actual adultery with 
 the wife of a priest, ought to suffer death; the wives, indeed, of all the 
 four classes must ever be most especially guarded. 
 
 371. "Should a wife, proud of her family and the great qualities of 
 her kinsmen, actually violate the duty, which she owes to her lord, let 
 the king condemn her to be devoured by dogs in a place much frequented. 
 
 y]2. "And let him place an adulterer on an iron bed well heated, 
 under which the executioners shall throw logs continually, till the sinful 
 wretch be there burned to death. 
 
 374. "A mechanic or servile man, having an adulterous connexion 
 with a woman of a twice-born class, whether guarded at home or un- 
 guarded shall thus be punished: if she was unguarded, he shall lose the 
 part offending, and his whole substance; if guarded, and a priestess, every 
 thing, even his life. 
 
 380. "Never shall the king slay a Brahman, though convicted of all 
 possible crimes: let him banish the offender from his realm, but with all 
 his property secure, and his body unhurt: 
 
 386. "That king, in whose realm lives no thief, no adulterer, no 
 defamer, no man guilty of atrocious violence, and no committer of 
 assaults, attains the mansion of Sacra. 
 
 389. "A mother, a father, a wife, and a son shall not be forsaken : 
 he, who forsakes either of them, unless guilty of a deadly sin, shall pay 
 six hundred panas as a fine to the king. 
 
 392. "The priest, who gives an entertainment to twenty men. of the 
 three first classes, without inviting his next neighbor, and his neighbor 
 next but one, if both be worthy of an invitation, shall be fined one 
 mdsha of silver. 
 
 394. "Neither a blind man nor an idiot, nor a cripple, nor a man full 
 seventy years old, nor one who confers great benefit on priests of 
 eminent learning, shall be compelled by any king to pay taxes. 
 
 395. "Let the king always do honour to a learned theologian, to a man 
 either sick or grieved, to a little child, to an aged or indigent man, to a 
 man of exalted birth, and to a man of distinguished virtue. 
 
 396. "Let a washerman wash the clothes of his employers by little 
 and little, or piece by piece, and not hastily, on a smooth board of 
 S dlmali-w 00 d: let him never mix the clothes of one person with the 
 clothes of another, nor suffer any but the owner to wear them." 
 
 Tolls, markets and ferries are regulated. 
 
 414. "A Sudra, though emancipated by his master, is not released 
 
1048 APPENDIX 
 
 from a state of servitude; for of a state, which is natural to him, by 
 whom can he be divested? 
 
 415. "There are servants of seven sorts; one made captive under a 
 standard or in battle, one maintained in consideration of service, one 
 born of a female slave in the house, one sold, or given, or inherited from 
 ancestors, and one enslaved by way of punishment on his inability to pay 
 a large fine. 
 
 416. "Three persons, a wife, a son, and a slave, are declared by law 
 to have in general no wealth exclusively their own : the wealth, which 
 they may earn, is regularly acquired for the man, to whom they belong." 
 
 This chapter covers a vast field but in a crude and disjointed manner. 
 Its moral tone is not so high as that of the chapter dealing with the 
 duties of the Brahmans. The king is not expected to exhibit the loftiest 
 virtues but to deal with the vices and crimes of men by force and in 
 ways calculated to restrain them. The spirit of caste and class privilege 
 is constantly inculcated. The Brahmans are granted special favors and 
 exempted from extreme punishment while the poor Sudras are loaded 
 with the heaviest burdens without hope of present reward. 
 
 Chapter 9 is entitled, "On the Same ; and on the Commercial and 
 Servile Classes." 
 
 2. "Day and night must women be held by their protectors in a state 
 of dependence; but in lawful and innocent recreations, though rather 
 addicted to them, they may be left at their own disposal. 
 
 3. "Their fathers protect them in childhood; their husbands protect 
 them in youth ; their sons protect them in age : a woman is never fit for 
 independence. 
 
 8; "The husband, after conception by his wife, becomes himself an 
 embryo, and is born a second time here below ; for which reason the 
 wife is called jdyd, since by her (jdydte) he is born again. 
 
 9. "Now the wife brings forth a son endued with similar qualitie-; 
 to those of the father ; so that with the view to an excellent offspring, 
 he must vigilantly guard his wife. 
 
 10. "No man, indeed, can wholly restrain women by violent measures; 
 but, by these expedients, they may be restrained: 
 
 11. "Let the husband keep his wife employed in the collection and 
 expenditure of wealth, in purification and female duty, in the prepara- 
 tion of daily food, and the superintendence of household utensils, 
 
 12. "By confinement at home, even under affectionate and observant 
 guardians, they are not secure; but those women are truly secure, who 
 are guarded by their own good inclinations. 
 
 13. "Drinking spirituous liquor, associating with evil persons, absence 
 from her husband, rambling abroad, unseasonable sleep, and dwelliuj^ in 
 the house of another, are six faults which bring infamy on a married 
 
CODE OF MANU 1049 
 
 Then follow sections relating to the duties and conduct of women and 
 inculcating chastity and fidelity. 
 
 45. "Then only is a man perfect, when he consists of three persons 
 united, his wife, himself, and his son; and thus have learned Brahmans 
 announced this maxim: The husband is even one person with his wife,' 
 for all domestic and religious, not for all civil, purposes. 
 
 59. "On failure of issue by the husband, if he be of the servile class, 
 the desired offspring may be procreated, either by his brother or some 
 other sapinda, on the wife, who has been duly authorized. 
 
 60. "Sprinkled with clarified butter, silent, in the night, let the kins- 
 man thus appointed beget one son, but a second by no means, on 
 the widow or childless wife : 
 
 77. "For a whole year let a husband bear with his wife, who treats 
 him with aversion; but after a year, let him deprive her of her separate 
 property, and cease to cohabit with her, 
 
 78. "She, who neglects her lord, though addicted to gaming, fond of 
 spirituous liquors, or diseased, must be deserted for three months, and 
 deprived of her ornaments and household furniture : 
 
 79. "But she, who is averse from a mad husband, or a deadly sinner, 
 or an eunuch, or one without manly strength, or one afflicted with such 
 maladies as punish crimes, must neither be deserted nor stripped of 
 her property. 
 
 80. "A wife who drinks any spirituous liquors, who acts immorally, 
 who shows hatred to her lord, who is incurably diseased, who is mis- 
 chievous, who wastes his property, may at all times be superseded by 
 another wife. 
 
 81 "A barren wife may be superseded by another in the eighth year: 
 she, whose children are all dead, in the tenth; she, who brings forth 
 only daughters, in the eleventh ; she, who speaks unkindly, without delay ; 
 
 82. "But she, who, though afflicted with illness, is beloved and virtuous, 
 must never be disgraced, though she may be superseded by another wife 
 with her own consent. 
 
 85. "When twice-born men take wives, both of their own class and 
 others, the precedence, honour and habitation of those wives, must be 
 settled according to the order of their classes: 
 
 86. "To all such married men, the wives of the same class only (not 
 wives of a different class by any means) must perform the duty of 
 personal attendance, and the daily business relating to acts of religion ; 
 
 88. "To an excellent and handsome youth of the same class, let every 
 man give his daughter in marriage, according to law ; even though she 
 have not attained her age of eight years : 
 
 89. "But it is better that the damsel, though marriageable, should stay 
 at home till her death, than that he should ever give her in marriage 
 to a bridegroom void of excellent qualities. 
 
I050 APPENDiIX 
 
 90. "Three years let a damsel wait, though she be marriageable; but, 
 after that term, let her choose for herself a bridegroom of equal rank. 
 
 91. "If, not being given in marriage, she choose her bridegroom, 
 neither she, nor the youth chosen, commits any offense; 
 
 92. "But a damsel, thus electing her husband, shall not carry with her 
 the ornaments, which she received from her father, nor those given by her 
 mother or brethren; if she carry them away, she commits theft. 
 
 93. "He, who takes to wife a damsel of full age, shall not give a 
 nuptial present to her father; since the father lost the dominion over 
 her, by detaining her at a time, when she might have been a parent. 
 
 94. "A man, aged thirty years, may marry a girl of twelve, if he find 
 one dear to his heart; or a man of twenty- four years, a damsel of 
 eight: but, if he finish his studentship earlier, and the duties of his 
 next order would otherwise be impeded, let him marry immediately. 
 
 loi. "Let mutual fidelity continue to death :" this in few words, 
 may be considered as the supreme law between husband and wife. 
 
 104. "After the death of the father and the mother, the brothers being 
 assembled, may divide among themselves the paternal and maternal estate ; 
 but they have no power over it, while their parents live, unless the 
 father choose to distribute it. 
 
 105. "The eldest brother may take entire possession of* the patrimony ; 
 and the others may live under him, as they lived under their father, 
 unless they choose to be separated. 
 
 108. "Let the father alone support his sons;- and the first-born, his 
 younger brothers; and let them behave to the eldest, according to law, 
 as children should behave to their father. 
 
 III. "Either let them thus live together, or, if they desire separately 
 to perform religious rites, let them live apart; since religious duties are 
 multiplied in separate houses, their separation is, therefore, legal and 
 even laudable. 
 
 112. "The portion deducted for the eldest is a twentieth part of the 
 heritage, with the best of all the chattels; for the middlemost, half of 
 that, or a fortieth; for the youngest a quarter of it, or an eightieth. 
 
 113. "The eldest and youngest respectively take their just mentioned 
 portions; and, if there be more than one between them, each of the 
 intermediate sons has the mean portion of the fortieth. 
 
 117. "Let the eldest have a double share, and the next born, a share 
 and a half, if they clearly surpass the rest in virtue and learning; the 
 younger sons must have each a share; if all be equal in good qualities, 
 they must all take share and share alike. 
 
 118. "To the unmarried daughters by the same mother, let their brothers 
 give portions out of their own allotments respectively, according to the 
 classes of their several mothers : let each give a fourth part of his own 
 distinct share; and they, who refuse to give it, shall be degraded. 
 
CODE OF MANU 1051 
 
 119. ''Let them never divide the value of a single goat or sheep, or 
 a single beast with uncloven hoofs; a single goat or sheep remaining 
 after an equal distribution, belongs to the first born. 
 
 120. "Should a younger brother, in the manner before mentioned, 
 have begotten a son on the wife of his deceased elder brother, the 
 division must then be made equally between that son, who represents the 
 deceased, and his natural father: thus is the law settled. 
 
 127. "He, who has no son, may appoint his daughter in this manner 
 to raise up a son for him, saying : "the male child, who shall be born 
 from her in wedlock, shall be mine for the purpose of performing my 
 obsequies." 
 
 131. "Property given to the mother on her marriage, is inherited by 
 her unmarried daughter; and the son of a daughter, appointed in the 
 manner just mentioned, shall inherit the whole estate of Her father, 
 who leaves no son by himself begotten: 
 
 134. "But, a daughter having been appointed to produce a son for her 
 father, and a son begotten by himself, being afterwards born, the division 
 of the heritage must in that case be equal; since there is no right of 
 primogeniture for a woman. 
 
 137- "By a son, a man obtains victory over all people; by a son's 
 son, he enjoys immortality; and afterwards, by the son of that grandson, 
 he reaches the solar abode. 
 
 149. "If there be four wives of a Brahman in the direct order of the 
 classes, and sons are produced by them all, this is the rule of partition 
 among them : 
 
 150. "The chief servant in husbandry, the bull kept for impregnating 
 cows, the riding-horse or carriage, the ring and other ornaments, and 
 the principal messuage, shall be deducted from the inheritance and given 
 to the Brahman-son, together with a larger share by way of pre-eminence. 
 
 151. "Let the Brahman take three shares of the residue; the son of 
 the Cshatriya-wife, two shares; the son of the Vaisya-wife, a share and 
 a half; and the son of the Sudra-wife, may take one share. 
 
 152. "Or, if no deduction be made, let some person learned in the 
 law divide the whole collected estate into ten parts, and make a legal 
 distribution by this following rule: 
 
 153. "Let the son of the Brahmani take four parts; the son of the 
 Cshatriya three; let the son of the Vaisya have two parts; let the son 
 of the Sudra take a single part, if he be virtuous. 
 
 154. "But whether the Brahman have sons, or have no sons, by wives 
 of the three first classes, no more than a tenth part must be given to 
 the son of a Sudra. 
 
 155. "The son of a Brahman, a Cshatriya, or a Vaisya or a woman 
 of the servile class, shall inherit no part of the estate, unless he be 
 virtuous ; nor jointly with other sons, unless his mother was lawfully 
 married : whatever his father may give him, let that be his own. 
 
I052 APPENDIX 
 
 156. "All the sons of twice-born men, produced by wives of the same 
 class, must divide the heritage equally, after the younger brothers have 
 given the first-born his deducted allotment. 
 
 157. "For a Sudra is ordained a wife of his own class, and no other: 
 all, produced by her, shall have equal shares, though she have a hundred 
 sons. 
 
 158. Of the twelve sons of men, whom Manu, sprung from the Self- 
 existent, has named, six are kinsmen and heirs ; six, not heirs, except 
 to their own fathers, but kinsmen. 
 
 159. "The son begotten by a man himself in lawful wedlock, the son 
 of his wife begotten in the manner before described, a son given to 
 him, a son made or adopted, a son of concealed birth, or whose real 
 father cannot be known, and a son rejected by his natural parents, are 
 the six kinsmen and heirs : 
 
 160. "The son of a young woman unmarried, the son of a pregnant 
 bride, a son bought, a son by a twice-married woman, a son self-given, 
 and a son by a Sudra, are the six kinsmen, but not heirs to collaterals. 
 
 161. "Such advantage, as a man would gain, who should attempt to 
 pass deep water in a boat made of woven reeds, that father obtains, 
 who passes the gloom of death, leaving only contemptible sons, who 
 are the eleven, or at least the six last mentioned. 
 
 182. "If, among several brothers of the whole blood, one have a son 
 born, Manu pronounces them all fathers of a male child by means of that 
 son ; so that, if such nephew would be the heir, the uncles have no power 
 to adopt sons : 
 
 183. "Thus if, among all the wives of the same husband, one bring forth 
 a male child, Manu has declared them all, by means of that son to be 
 mothers of male issue. 
 
 184. "On failure of the best, and of the next best, among those 
 twelve sons, let the inferior in order take the heritage; but, if there 
 be many of equal rank let all be sharers of the estate. 
 
 185. "Not brothers, nor parents, but sons, if living, or their male 
 issue are heirs to the deceased, but of him, who leaves no son, nor a 
 wife, nor a daughter, the father shall take the inheritance; and, if he 
 leave neither father, nor mother, the brothers. 
 
 187. "To the nearest sapinda, male or female, after him in the third 
 degree, the inheritance next belongs ; then, on failure of sapindas and 
 of their issue, the samdnodaca, or distant kinsman, shall be the heir; 
 or the spiritual preceptor, or the pupil, or the fellow-student, of the 
 deceased : 
 
 188. "On failure of all those, the lawful heirs are such Brahmans 
 as have read the three Vedas, as are pure in body and mind, as have 
 studied their passions ; and they must consequently offer the cake : 
 thus the rites of obsequies cannot fail. 
 
CODE OF MAXU 1053 
 
 189. "The property of a Brahman shall never be taken as an eschea: 
 ty the king; this is fixed law; but the wealth of the other classes on 
 failure of all heirs, the king may take. 
 
 192. "On the death of the mother, let all the uterine brothers and 
 the uterine sisters, if unmarried, equally divide the maternal estate: 
 each married sister shall have a fourth part of a brother's allotment. 
 
 193. "Even to the daughters of those daughters, it is fit, that some- 
 thing should be given from the assets of the maternal grandmother, 
 on the score of natural affection. 
 
 194. "What was given before the nuptial fire, what was given on the 
 l)ridal procession, what was given in token of love, and what was 
 received from a brother, a mother, or a father, are considered as the 
 sixfold separate property of a married woman. 
 
 195. "What she received after marriage from the family of her hus- 
 band, and what her affectionate lord may have given her, shall be 
 inherited, even if she die in his lifetime, by her children. 
 
 196. "It is ordained, that the property of a woman, married by the 
 -ceremonies called Brahma, Daiva, Arsha, Gdndharva, or Prajdpdtya, shall 
 go to her husband, if she die without issue. 
 
 197. "But her wealth given on the marriage called Asura, or on either 
 •of the two others, is ordained, on her death without issue, to become 
 the property of her father and mother. 
 
 201. "Eunuchs and outcasts, persons born blind or deaf, madmen, 
 idiots, the dumb, and such as have lost the use of a limb, are excluded 
 irom a share of the heritage; 
 
 202. "But it is just, that the heir, who knows his duty, should give 
 all of them food and raiment for life without stint, according to the 
 best of his power: he, who gives them nothing, sinks assuredly to a 
 region of punishment." 
 
 Many other rules of inheritance in special cases are given. 
 
 224. "Let the king punish corporally at discretion, both the gamester 
 and the keeper of a gaming-house, whether they play with inanimate or 
 animate things ; and men of the servile class, who wear the string and 
 other marks of the twice-born. 
 
 225. "Gamesters, public dancers and singers, revilers of scripture, 
 open heretics, men who perform not the duties of their several classes; 
 and sellers of spirituous liquor, let him instantly banish from the town : 
 
 230. "For women, children, persons of crazy intellect, the old, the 
 poor, and the infirm, the king shall order punishment with a small whip, 
 a twig, or a rope. 
 
 232. "Such as forge royal edicts, cause dissensions among the great 
 ministers, or kill women, priests, or children, let the king put to death; 
 and such, as adhere to his enemies." 
 
 Following these sections comes a miscellaneous list of offenses for 
 
1054 APPENDIX 
 
 which fines and punishments are prescribed. The duty of the king tO' 
 cause the detection of crimes and the punishment of criminals is declared 
 and the use of spies is recommended, 
 
 2y6. "Of robbers, who break a wall or partition, and commit theft 
 in the night, let the prince order the hands to be lopped off, and themselves 
 to be ifixed on a sharp stake. 
 
 2yy. "Two fingers of a cutpurse, the thumb and the index, let him 
 cause to be amputated on his first conviction; on the second, one hand 
 and one foot; on the third, he shall suffer death. 
 
 2y^. "Such, as give thieves fire, such as give them food, such as 
 give them arms and apartments, and such as knowingly receive a thing 
 stolen, let the king punish as he would punish a thief. 
 
 280. "Those, who break open the treasury, or the arsenal, or the 
 temple of a deity, and those, who carry off royal elephants, horses, or 
 cars, let him without hesitation destroy. 
 
 287. "The man, who shall deal unjustly with purchasers at a fair 
 price by delivering goods of less value, or sell at a high price goods 
 of ordinary value, shall pay, according to circumstances, the lowest or 
 the middle amercement. 
 
 290. "For all sacrifices to destroy innocent men, the punishment is a 
 fine of two hundred panas; and for machinations with poisonous roots,, 
 and for various charms and witcheries intended to kill, by persons not 
 effecting their purpose. 
 
 292. "But the most pernicious of all deceivers is a goldsmith, who 
 commits frauds : the king shall order him to be cut piecemeal with razors." 
 
 After these rules for the punishment of crime there is an abrupt 
 change of subject to a consideration of the powers and duties of a king. 
 
 301. "All the ages, called Satya, Treta, Dwdpara, and Cali, depend on 
 the conduct of the king; who is declared in turn to represent each of 
 those ages. 
 
 302. "Sleeping, he is the Cali age; waking, the Dwapara; exerting 
 himself in action, the Treta; living virtuously, the Satya. 
 
 313. "Let him not, although in the greatest distress for money, provoke 
 Brahmans to anger by taking their property; for they, once enraged, 
 could immediately by sacrifices and imprecations destroy him with his 
 troops, elephants, horses and cars. 
 
 314. "Who, without perishing, could provoke those holy men, by 
 whom, that is, by whose ancestors, under Brahma, the all-devouring 
 fire was created, the sea with waters not drinkable, and the moon with 
 its wane and increase? 
 
 320. "Of a military man, who raises his arm violently on all occasions 
 against the priestly class, the priest himself shall be the chastiser; since 
 the soldier originally proceeded from the Brahman. 
 
 326. Let the Vaisya, having been girt with his proper sacrificial thread, 
 
CODE OF MANU 1055 
 
 and having married an equal wife, be always attentive to his business of 
 agriculture and trade, and to that of keeping cattle; 
 
 Z27. "Since the lord of created beings, having formed herds, and flocks, 
 intrusted them to the care of the Vaisya, while he intrusted the whole 
 human species, to the Brahman and the Cshatriya : 
 
 329. "Of gems, pearls, and coral, of iron, of woven cloth, of per- 
 fumes and of liquids, let him well know the prices both high and low. 
 
 330. "Let him be skilled likewise in the time and manner of sowing 
 seeds, and in the bad or good qualities of land; let him also perfectly 
 know the correct modes of measuring and weighing. 
 
 331. "The excellence or defects of commodities, the advantages and 
 disadvantages of different regions, the probable gain or loss on vendible 
 goods, and the means of breeding cattle with large augmentation. 
 
 332. "Let him know the just wages of servants, the various dialects 
 of men, the best way of keeping goods, and whatever else belongs to 
 purchase and sale. 
 
 ZZZ- "Let him apply the most vigilent care to augment his wealth by 
 performing his duty; and, with great solicitude, let him give nourishment 
 to all sentient creatures. 
 
 334. "Servile attendance on Brahmans learned in the Veda, chiefly 
 on such as keep house and are famed for virtue, is of itself the highest 
 duty of a Sudra, and leads him to future beatitude. 
 
 335. "Pure in body and mind, humbly serving the three higher classes, 
 mild in speech, never arrogant, ever seeking refuge in Brahmans prin- 
 cipally, he may attain the most eminent class in another transmigration! 
 
 Chapter 10 is "On the Mixed Classes ; and on Times of Distress." 
 
 4. "The three twice-born classes are the sacerdotal, the military, and 
 the commercial ; but the fourth, or servile, is once-born, that is, has 
 no second birth from the gayatri, and wears no thread : nor is there 
 a fifth pure class. 
 
 5. "In all classes they, and they only, who are born in a direct order, 
 of wives equal in class and virgins at the time of marriage, are to be 
 considered as the same in class with their fathers": 
 
 Here follows an account of the origin of the various sub or impure 
 castes by intermarriages of members of the different castes and sub-castes 
 and a designation of their several occupations. 
 
 12. "From a Sudra, on women of the commercial, military, and priestly 
 class, are born sons of a mixed breed, called Ayogava, Cshattri and 
 Chandala, the lowest of mortals. 
 
 38. "From a Chandala by a Pucassi woman, is born a Sopaca who lives 
 by punishing criminals, condemned by the king, a sinful wretch ever 
 despised by the virtuous. 
 
 42. "By the force of extreme devotion and of exalted fathers, all of 
 them may rise in time to high birth, as by the reverse they may sink to 
 a lower state, in every age among mortals in this inferior world. 
 
ios6 APPENDIX 
 
 45. "All those tribes of men, who sprang from the mouth, the arm, 
 the thigh, and the foot of Brahma, but who became outcasts by having 
 neglected their duties, and called Dasyus, or plunderers, w'hether they 
 speak the language of Mlech'chhas, or that of Aryas. 
 
 46. "Those sons of the twice-born who are said to be degraded, and 
 who are considered as low-born, shall subsist only by such employments, 
 as the twice-born despise. 
 
 64. "Should the tribe, sprung from a Brahman, by a Sudra-woman, 
 produce a succession of children by the marriages of its women with 
 other Brahmans, the low tribe shall be raised to the highest in the 
 seventh generation. 
 
 65. "As the son of a Sudra may thus attain the rank of Brahman, 
 and as the son of a Brahman may sink to a level with Sudras, even so 
 must it be with him, who springs from Cshatriya; even so with him 
 who was born of a Vaisya. 
 
 74. "Let such Brahmans as are intent on the means of attaining the 
 supreme god-head, and firm in their own duties, completely perform, 
 in order, the six following acts: 
 
 75. "Reading the Vedas, and teaching others to read them, sacrificing, 
 and assisting others to sacrifice, giving to the poor, if themselves have 
 enough, and accepting gifts from the virtuous if themselves are poor, 
 are the six prescribed acts of the first-born class. 
 
 "/(y. "But. among those six acts of a Brahman, three are his means 
 of subsistence ; assisting to sacrifice, teaching the Vedas, and receiving 
 gifts from a pure handed giver, 
 
 Tj. "Three acts of duty cease with the Brahman, and belong not to 
 the Cshatriya; teaching the Vedas, officiating at a sacrifice, and, thirdly, 
 receiving presents: 
 
 78. "Those three are also (by the fixed rule of law) forbidden to the 
 Vaisya; since Manu, the lord of all men, prescribed not those acts to 
 the two classes, military and commercial. 
 
 79. "The means of subsistence peculiar to the Cshatriya, are bearing 
 arms, either held for striking or missile, to the Vaisya, merchandise, 
 attending on cattle, and agriculture : but with a view to the next life, 
 the duties of both are almsgiving, reading, sacrificing." 
 
 A statement is then given in detail of the occupations that may be 
 followed by the twice-born in cases of necessity, where they are unable 
 to live in the manner appropriate to their respective castes. 
 
 115. "There are seven virtuous means of acquiring property, succession, 
 occupancy or donation, and purchase or exchange, which are allowed 
 to all classes ; conquest, which is peculiar to the military class ; lending 
 at interest, husbandry or commerce, which belong to the mercantile 
 class ; and acceptance of presents, by the sacerdotal class, from respectable 
 
CODE OF MANU 1057 
 
 116. "Learning, except that contained in the scriptures, arts, as mixing 
 perfumes and the like, work for wages, menial service, attendence on 
 cattle, traffick, agriculture, content with little, alms, and receiving high 
 interest on money, are ten modes of subsistence in times of distress. 
 
 117. "Neither a priest nor a military man, though distressed, must re- 
 ceive interest on loans, but each of them, if he please, may pay the 
 small interest permitted by law, on borrowing for some pious use, to the 
 sinful man, who demands it. 
 
 120. "The tax on the mercantile class, which in times of prpsperity 
 must be only a twelfth part of their crops, and a fifteenth of their 
 personal profits, may be- an eighth of their crops in a time of distress, 
 or a sixth, which is the medium, or even a fourth in great publick ad- 
 versity; but a twentieth of their gains on money, and other movables, 
 is the highest tax ; serving men artisans, and mechanics rtiust assist 
 by their labour, but at no time pay taxes. 
 
 129. "No superfluous collection of wealth must be made by a Sudra^ 
 even though he has power to make it, since a servile man, who has 
 amassed riches, becomes proud, and, by his insolence or neglect, gives 
 pain even to Brahmans. 
 
 Chapten 11 is "On Penance and Expiation." Penances are prescribed 
 as religious observances for the good of the individual and to relieve 
 him from the degradation resulting fom his transgression. Some other 
 matters are treated of in the chapter. 
 
 1. "Him, who intends to marry for the sake of having issue; him, 
 who wishes to make a sacrifice; him, who travels; him, who has given 
 all his wealth at a sacred rite; him, who desires to maintain his pre- 
 ceptor ; his father, or his mother ; him, who needs a maintenance for 
 himself, when he first reads the Vedas ; and him, who is afflicted with 
 illness ; 
 
 2. These nine Brahmans let mankind consider as virtuous mendicants^ 
 called sndtacas; and, to relieve their wants, let gifts of cattle or gold 
 be presented to them in proportion to their learning. 
 
 3. "To these most excellent Brahmans must rice also be given, with 
 holy presents at oblations to fire and within the consecrated circle; but 
 the dressed rice, which others are to receive, must be delivered on the 
 outside of the sacred hearth; gold and the like may be given anywhere. 
 
 4. "On such Brahman as well known the Veda, let the king bestow, 
 as it becomes him, jewels of all sorts, and the solemn reward for 
 officiating at the sacrifice. 
 
 9. "He, who bestows gifts on strangers, with a view to wordly fame, 
 while he suffers his family to live in distress, though he has power 
 to support them, touches his lips with honey, but swallows poison; 
 such virtue is counterfeit: 
 
 10. "Even what he does for the sake of his future spiritual body to 
 
1058 APPENDIX 
 
 the injury of those, whom he is bound to maintain, shall bring him 
 ultimate misery both in this life and in the next." 
 
 Where a sacrifice is to be performed and some necessary article is 
 lacking the Brahman performing the sacrifice is authorized to take it 
 from one having sufficient possessions. 
 
 34. "A soldier may avert danger from himself by the strength of 
 his arm ; a merchant and a mechanic, by their property ; but the chief 
 of the twice-born, by holy texts and oblations to fire. 
 
 Z6. "Let not a girl nor a young woman married or unmarried, nor 
 a man with little learning, nor a dunce, perform an oblation to fire;, nor 
 a man diseased, nor one uninvested with the sacrificial string; 
 
 40. "The organs of sense and action, reputation in this life, a heavenly 
 mansion in the next, life itself, a great name after death, children and 
 cattle, are all destroyed by a sacrifice offered with trifling presents : 
 let nf) man, therefore, sacrifice without liberal gifts. 
 
 69. "To kill an ass, a horse, a camel, a deer, an elephant, a goat, 
 a sheep, a fish, a snake, or a buffalo, is declared an offense, which 
 degrades the killer to a mixed tribe. 
 
 70. "Accepting presents from despicaible men, illegal traffic, attendance 
 on a Sudra master, and speaking falsehood, must be considered as 
 causes of exclusion from social repasts. 
 
 71. "Killing an insect, small or large, a worm, or a bird, eating what 
 has been brought in the same basket with spirituous liquor, stealing 
 fruit, or flowers, and great perturbation of mind on trifling occasions, 
 are offenses which cause defilement. 
 
 94. "Since the spirit of rice is distilled from the Mala, or filthy refuse 
 of the grain, and since Mala is also a name for sin, let no Brahman, 
 Cshatriya or Vaisya drink that spirit. 
 
 95. "Inebriating liquor may be considered as of three principal sorts : 
 that extracted from dregs of sugar, that extracted from bruised rice, 
 and that extracted from the flowers of the Madhuca as one, so are all; 
 they shall not be tasted by the chief of the twice-born. 
 
 98. "When the divine spirit, or the light of the holy knowledge, which 
 has been infused into his body, has once been sprinkled with any in- 
 toxicating liquor, even his priestly character leaves him, and he sinks 
 to the low degree of a Sudra. 
 
 127. "For killing intentionally a virtuous man of the military class, 
 the penance must be a fourth part of that ordained for killing a priest; 
 for killing a Vaisya, only an eighth; for killing a Sudra, who had been 
 constant in discharging his duties, a sixteenth part. 
 
 132. "If he kill by design a cat, or an ichneumon, the bird Chdsa, or a 
 frog, a dog, a lizard, an owl, or a crow, he must perform the ordinary 
 penance required for the death of a Sudra, that is the chdndrdyana." 
 
 Penances and purifications are required for eating prohibited foods 
 of which there is a long list. 
 
CODE OF MANU 1059 
 
 166. "For taking what may be eaten, or what may be sipped, a carriage, 
 a bed, or a seat, roots, flowers, or fruit, an atonement may be made by 
 swallowing the five pure things produced by a cow, or milk, curds, 
 butter, urine, dung: 
 
 211. "Those penances, by which a man may atone for his crimes, I 
 now will describe to you; penances, which have been performed by 
 deities, by holy sages, and by forefathers of the human race. 
 
 212. "When a twice-born man performs the common penance, or that 
 of Prajdpati, he must for three days eat only in the morning; for three 
 
 days, only in the evening; for three days, food unasked but presented to 
 him; and for three more days nothing. 
 
 213. "Eating for a whole day the dung and urine of cows mixed 
 with curds, milk, clarified butter, and water boiled with cusa-grass, 
 and then fasting entirely for a day and a night, is the penance called 
 Sdntapana (either from the devout man Sdntapana, or from tormenting). 
 
 214. "A twice-born man performing the penance, called very severe, 
 in respect of the common, must eat, as before, a single mouthful, or a 
 ball of rice as large as a hen's egg, for three times three days ; and for 
 the last three days, must wholly abstain from food. 
 
 215. "A Brahman, performing the ardent penance, must swallow noth- 
 ing but hot water, hot milk, hot clarified butter, and hot steam, each of 
 them for three days successively, performing an ablution and mortifying 
 all his members. 
 
 216. "A total fast for twelve days and nights, by a penitent with his 
 organs controlled and his mind attentive, is the penance named pardca, 
 which expiates all degrees of guilt. 
 
 217. "If he diminish his food by one mouthful each day, during the 
 dark fortnight, eating fifteen mouthfuls on the day of the opposition, 
 and increase it, in the same proportion, during the bright fortnight, 
 fasting entirely on the day of the conjunction, and perform an ablution 
 regularly at sunrise, noon, and sunset, this is the chdndrdyana, or the 
 lunar penance : 
 
 218. "Such is the penance called ant-shaped or narrow in the middle; 
 but, if he perform the barley shaped, or broad in the middle, he must 
 observe the same rule, beginning with the bright half-month, and keeping 
 tinder command his organs of action and sense. 
 
 223. "The oblation of clarified butter to fire must every day be made 
 by the penitent himself, accompanied with the mighty words, earth, sky, 
 heaven ; he must perfectly abstain from injury to sentient creatures, 
 from falsehood, from wrath, and from all crooked ways. 
 
 224. "Or, thrice each day, and thrice each night for a month, the 
 penitent may plunge into water clothed in his mantle, and at no time 
 
 conversing with a woman, a Sudra, or an outcast. 
 
 225. "Let him be always in motion, sitting and rising alternately, or, 
 
io6o APPENDIX 
 
 if unable to be thus restless, let him sleep low on the bare ground; 
 chaste as a student of the Veda, bearing the sacred Zone and staff,, 
 showing reverence to his preceptor, to the gods, and to priests. 
 
 226. "Perpetually must he repeat the Gdyatri, and other pure texts 
 to the best of his knowledge: thus in all penances for absolution from 
 sin, must he vigilantly employ himself. 
 
 229. "In proportion as a man, who has committed a sin, shall truly 
 and voluntarily confess it, so far he is disengaged from that offense, 
 like a snake from his slough; 
 
 230. "And, in proportion as his heart sincerely loathes his evil deed, 
 so far shall his vital spirit be freed from the taint of it. 
 
 235. All the bliss of deities and of men is declared by sages, who 
 discern the sense of the Veda, to have in devotion its cause, in devotion 
 its continuance, in devotion its fulness. 
 
 236. ''Devotion is equal to the performance of all duties; it is divine 
 knowledge in a Brahman; it is defense of the people in a Cshatriya; 
 devotion is the business of trade and agriculture in a Vaisya; devotion 
 is dutiful service in a Sudra. 
 
 244. "Even Brahma, lord of creatures, by devotion enacted this code of 
 laws; and the sages by devotion acquired a knowledge of the Vedas. 
 
 245. "Thus the gods themselves, observing in this universe the incom- 
 parable power of devotion, have proclaimed aloud the transcendent 
 excellence of pious austerity. 
 
 249. "Sixteen suppressions of the breath, while the holiest of texts 
 is repeated with the three mighty words, and the trilateral syllable, con- 
 tinued each day for a month, absolve even the slayer of a Brahman 
 from his hidden faults. 
 
 250. "Even a drinker of spirituous liquors is absolved by repeating 
 each day the text apa used by the sage Cautsa, or that beginning with 
 preti used by Vasishtha, or that • called mdhitra, or that, of which the 
 first word is suddhavatyah. 
 
 251. "By repeating each day for a month the text dsyavdmiya, ot 
 the hymn Sivasancacalpa, the stealer of gold from a priest becomes 
 instantly pure. 
 
 262. "A priest who should retain in his memory the whole Rigveda, 
 would be absolved from guilt, even if he had slain the inhabitants of 
 the three worlds, and had eaten food from the foulest hands. 
 
 263. "By thrice repeating the mantras and hrahmanas of the Rich, or 
 those of the YajusJi, or those of the Saman, with the Upanishads, he 
 shall perfectly be cleansed from every possible taint. 
 
 264. "As a clod of earth, cast into a great lake, sinks in it, thus is 
 every sinful act submerged in the triple Veda. 
 
 265. "The divisions of the Rich, the several branches of the Yajush^ 
 and the manifold strains of the Sdman must be considered as forming: 
 the triple Veda: he knows the Veda, who knows them collectively. 
 
CODE OF MANU 1061 
 
 266. "The primary triliteral syllable, in which the three Vedas them- 
 selves are comprised, must be kept secret, as another triple Veda, he 
 who knows the Veda, who distinctly knows the mystic sense of that 
 word." 
 
 The 1 2th and last chapter is "On Transmigration and Final Beatitude." 
 
 3. "Action, either mental, verbal, or corporal, bears good or evil 
 fruit, as itself is good or evil; and from the actions of men proceed 
 their various transmigrations in the highest, the mean, and the lowest 
 degree : 
 
 4. "Of that three-fold action, connected with bodily functions, disposed 
 in three classes, and consisting of ten orders, be it known in this world, 
 that the heart is the instigator. 
 
 5. ''Devising means to appropriate the wealth of other men, resolving 
 on any forbidden deed, and conceiving notions of atheism or materialism, 
 are tK'e three bad acts of mind: 
 
 6. "Scurrilous language, falsehood, indiscriminate backbiting, and 
 useless tattle, are the four bad acts of the tongue: 
 
 7. Taking effects not given, hurting sentient creatures without the 
 sanction of law, and criminal intercourse with the wife of another, are 
 the three bad acts of the body; and all the ten have their opposites 
 which are good in an equal degree. 
 
 8. "A rational creature has a reward or a punishment for mental 
 acts, in his mind; for verbal acts, in his organs of speech; for corporal 
 acts, in his bodily frame. 
 
 9. "For sinful acts mostly corporal, a man shall assume after death a 
 vegetable or mineral form; for such acts mostly verbal, the form of a 
 bird or a beast ; for acts mostly mental, the lowest of human conditions : 
 
 12. "That substance which gives a power of motion, to the body, the 
 wise call cshetrajnya, or jivdtman, the vital spirit; and that body, which 
 thence derives active functions, they name hhiUdtman, or composed of 
 elements : 
 
 13. "Another internal spirit, called mahat, or the great soul, attends 
 the birth of all creatures imbodied, and thence in all mortal forms is 
 conveyed a peception either pleasing or painful. 
 
 14. "Those two, the vital spirit and reasonable soul, are closely united 
 with five elements, but connected with the supreme spirit, or divine 
 essence, which pervades all beings high and low: 
 
 15. "From the substance of that supreme spirit are diffused, like sparks 
 from fire, innumerable vital spirits, which perpetually give motion to 
 creatures exalted and base. 
 
 16. "By the vital souls of those men, who have committed sins in the 
 body reduced to ashes, another body, composed of nerves with five 
 sensations, in order to be susceptible of torment, shall certainly be 
 assumed after death ; 
 
io62 APPENDIX 
 
 17. "And, being intimately united with those minute nervous particles, 
 according to their distribution, they shall feel, in that new body, the 
 pangs inflicted in each case by the sentence of Yama. 
 
 18. "When the vital soul has gathered the fruit of sins, which arise 
 from a love of sensual pleasure, but must produce misery, and, when its 
 taint has thus been removed, it approaches again those two most effulgent 
 essences, the intellectual soul and the divine spirit: 
 
 19. "They two, closely conjoined, examine without remission the virtues 
 and vices of that sensitive soul, according to its union with which it 
 acquires pleasure or pain in the present and future worlds. 
 
 20. "If the vital spirit had practised virtue for the most part, and 
 vice in a small degree, it enjoys delight in celestial abodes, clothed with 
 a body formed of pure elementary particles; 
 
 21. "But, if it had generally been addicted to vice, and seldom attended 
 to virtue, then shall it be deserted by those pure elements, and, having 
 a coarser body of sensible nerves, it feels the pain to which Yama shall 
 doom it: 
 
 22. "Having endured those torments according to the sentence of 
 Yama, and its taint being almost removed, it again reaches those five 
 pure elements in the order of their natural distribution, 
 
 24. "Be it known, that the three qualities of the rational soul are a 
 tendency of goodness, to passion, and to darkness; and, endued with 
 one or more of them, it remains incessantly attached to all those created 
 .•substances : 
 
 25 "When any one of the three qualities predominates in a mortal 
 "frame, it renders the embodied spirit eminently distinguishable for that 
 quality. 
 
 26. "Goodness is declared to be true knowledge; darkness, gross 
 ignorance ; passion, an emotion of desire or aversion ; such is the com- 
 pendious description of those qualities, which attend all souls. 
 
 31. "Study of scripture, austere devotion, sacred knowledge, corporeal 
 purity, command over the organs, performances of duties, and meditation 
 on the divine spirit, accompany the good quality of the soul: 
 
 32. "Interested motives for acts of religion or morality, perturbation 
 of mind on slight occasions, commission of acts forbidden by law, and 
 habitual indulgence in selfish gratifications, are attendant on the quality 
 of passion: 
 
 33. "Covetuousness, indolence, avarice, detraction, atheism, omission 
 of prescribed acts, a habit of soliciting favors, and inattention to necessary 
 business, belong to the dark quality. 
 
 38. "Of the dark quality, as described, the principal object is pleasure; 
 of the passionate, wordly prosperity; but of the good quality the chief 
 object is virtue: the last mentioned objects are superior in dignity. 
 
 40. "Souls, endued with goodness, attain always the state of deities ; 
 those filled with ambitious passions, the condition of men; and those im- 
 
CODE OF MANU 1063 
 
 mersed in darkness, the nature of beasts; this is the triple order of 
 transmigration. 
 
 42. "Vegetable and mineral substances, worms, insects, and reptiles, some 
 very minute, some rather larger, fish, snakes, tortoises, cattle shakals, 
 are the lowest forms, to which the dark quality leads. 
 
 43. "Elephants, horses, men of the servile class, and contemptible 
 Mlechhas, or barbarians, lions, tigers, and boars are the mean states pro- 
 cured by the quality of darkness: 
 
 44. "Dancers and singers, birds, and deceitful men, giants, and blood- 
 thirsty savages, are the highest conditions, to which the dark quality 
 can ascend. 
 
 45. "J'hallas, or cudgel-players, Mallas, or boxers and wrestlers, Natas, 
 or actors, those who teach the use of weapons, and those who are addicted 
 to gaming or drinking, are the lowest forms occasioned by the passionate 
 quality : 
 
 46. "Kings, men of the fighting class, domestic priests of kings, and 
 men skilled in the war of controversy, are the middle states caused by 
 the quality of passion: 
 
 47. "Gandharvas, or aerial musicians, Guhyacas, and Yacshas, or ser- 
 vants and companions of Cuvera, genii attending superior gods, as the 
 Vidyadharas and others, together with various companies of Apsarases 
 or nymphs, are the highest of those forms, which the quality of passion 
 attains. 
 
 48. Hermits, religious mendicants, other Brahmans, such orders of 
 demigods as are wafted in airy cars, genii of the signs and lunar mansions, 
 and Daityas, or the offspring of Diti, are the lowest of states procured 
 by the quality of goodness : 
 
 49. "Sacrificers, holy sages, deities of the lower heaven, genii of the 
 Vedas, regents of stars not in the paths of the sun and moon, divinities 
 of years, Pitris or progenitors of mankind, and the demigods named 
 Sadhyas, are the middle forms, to which the good quality conveys all 
 spirits moderately endued with it: 
 
 50. "Brahma with four faces, creators of worlds under him, as Marichi 
 and others, the genius of virtue, the divinities presiding over (two 
 principles of nature in the philosophy of Capila) mahat, or the mighty, 
 and avyacta, or unperceived, are the highest conditions, to which, by 
 the good quality, souls are exalted. 
 
 Then follows an account of the particular incarnations which the soul 
 must endure for the various offenses. 
 
 83. "Studying and comprehending the Veda, practising pious austeri- 
 ties, acquiring divine knowledge of law and philosophy, command over 
 the organs of sense and action, avoiding all injury to sentient creatures, 
 and showing reverence to a natural and spiritual father, are the chief 
 branches of duty which ensure final happiness. 
 
io64 APPENDIX 
 
 84. "Among all those good acts performed in this world, said the sages, 
 is no single act held more powerful than the rest in leading men to 
 beatitude ? 
 
 85. "Of all those duties, answered Bhrigu, the principal is to acquire 
 from the Upanishads a true knowledge of one supreme God; that is the 
 most exalted of all sciences, because it ensures immortality: 
 
 90. "He, who frequently performs interested rites, attains an equal 
 station with the regents of the lower heaven; but he, who frequently 
 performs disinterested acts of religion, becomes forever exempt from a 
 body composed of the five elements: 
 
 91. "Equally perceiving the supreme soul in all beings and all beings 
 in the supreme soul, he sacrifices his own spirit by fixing it on the 
 spirit of God, and approaches the nature of that sole divinity, who shines 
 by his own effulgence. 
 
 94. "To patriarchs, to deities, and to mankind, the scripture is an eye 
 giving constant light; nor could the Veda-Sastra have been made by 
 human faculties; nor can it be measured by human reason unassisted 
 by revealed glosses and comments : this is a sure proposition. 
 
 95. "Such codes of law as are not grounded on the Veda, and the 
 various heterodox theories of men, produce no good fruit after death, 
 for they are all declared to have their basis on darkness. 
 
 loi. "As fire with augmented force burns up even humid trees, thus 
 he, who well knows the Veda, burns out the taint of sin, which has 
 infected his soul. 
 
 108. "If it be asked, how the law shall be ascertained, when particular 
 cases are not comprised under any of the general rules, the answer is 
 this: "That, which well-instructed Brahmans propound, shall be held 
 incontestable law. 
 
 109. "Well instructed Brahmans are they, who can adduce ocular 
 proof from the scripture itself, having studied, as the law ordains, 
 the Vedas and their extended branches, or Vedangas, Minansa, Nyaya, 
 Dharma-Sastra, Puranas. 
 
 no. "A point of law, before not expressly revealed, which shall be 
 decided by an assembly of ten such virtuous Brahmans under one 
 chief, or, if ten be not procurable, of three such under one president, 
 let no man controvert. 
 
 111. "The assembly of ten under a chief, either the king himself or a 
 judge appointed by him, must consist of three, each of them peculiarly 
 conversant with one of the three Vedas, of a fourth skilled in the Nyaya, 
 and a fifth in the Minansa philosophy; of a sixth, who has particularly 
 studied the Niracta; a seventh, who has applied himself most assiduously 
 to the Dharma-Sastra; and of three universal scholars, who are in 
 the three first orders. 
 
 112. One, who has chiefly studied the RTgveda, a second, who prin- 
 cipally knows the Yajush, and a third best acquainted with the Saman, 
 
CODE OF MANU 1065 
 
 are tlie assembly of three under a head, who may remove all doubts 
 both in law and casuistry, 
 
 113. Even the decision of one priest, if more cannot be assembled, 
 who perfectly knows the principles of the Vedas, must be considered 
 a law of the highest authority; not the opinions of myriads, who have 
 no sacred knowledge. 
 
 118. "Let every Brahman with fixed attention consider all nature, 
 both visible and invisible, as existing in the divine spirit, for when he 
 contemplates the boundless universe existing in the divine spirit, he 
 cannot give his heart to iniquity : 
 
 119. "The divine spirit alone is the whole assemblage of gods; all 
 worlds are seated in the divine spirit; and the divine spirit no doubt 
 produces, by a chain of causes and effects consistent with free-will, the 
 connected series of acts performed by embodied souls. 
 
 122. "But he must consider the supreme omnipresent intelligence as 
 the sovereign lord of them all, by whose energy alone they exist; a 
 spirit, by no means the object of any sense, which can only be conceived 
 by a mind wholly abstracted from matter, and as it were slumbering; 
 but which, for the purpose of assisting his meditation, he may imagine 
 more subtle than the finest conceivable essence, and more bright than 
 the purest gold. 
 
 123. Him some adore as transcendently present in elementary fire; 
 others, in Manu, lord of creatures, or an immediate agent in the creation; 
 some, as more distinctly present in Indra, regent of the clouds and atmo- 
 sphere; others in pure air; others, as the most Hig-h Eternal Spirit. 
 
 124. "It is he, who, pervading all beings in five elemental forms, 
 causes them by the gradations of ibirth, growth, and dissolution, to 
 revolve in this world, until they deserve beatitude, like the wheels of a car. 
 
 125. "Thus the man, who perceives in his own soul the supreme soul 
 present in all creatures, acquires equanimity toward them all, and shall 
 be absorbed at last in the highest essence, even that of the Almighty 
 himself." 
 
 The fundamental principles of this code are more ancient than the 
 code itself. Castes had existed from a considerably earlier time, and the 
 religious ideas are based on and taken from the Vedas. When it is 
 considered that the system of laws embodied in this code was in force 
 in its essential features more than three thousand years ago, and that 
 the vast population of India is still so strongly attached- to it, that 
 the British government finds it expedient to adjust the rights of litigants 
 in accordance with its rules, it must be accorded preeminence for stability 
 and immutability over all other codes ever promulgated. It is not, 
 however, to be inferred that this code in its purity has been observed 
 by all the Brahmans in all ages. On the contrary its maxims have 
 been ignored or corrupted at different times and in different places, and 
 
io66 APPENDIX 
 
 rulers have interpolated laws of their own, for which they have claimed 
 the sanction of Manu. The learned Hindus also hold that some of these 
 laws were in force only during the first three ages of the world but 
 are now obsolete; such laws however are neither numerous nor of 
 marked importance. 
 
 INSTITUTES OF JUSTINIAN 
 
 Among the opening paragraphs of the first of the four books of the 
 Institutes are the following, "Justitia est constans et perpetua voluntas 
 jus suum cuique tribuendi" Justice is the constant and perpetual dispo- 
 sition to render everyone his due. 
 
 "Jurisprudence is the knowledge of things divine and human; the 
 science of what is just and unjust." 
 
 "The precepts of the law are to live honestly, to hurt no one, to give 
 to every one his due." 
 
 "The Roman law like the Grecian is divided into written and unwritten. 
 The written consists of the plebiscites, the decrees of the senate, ordi- 
 nances of the princes, edicts of the magistrates and answers of the 
 licensed lawyers." 
 
 "The unwritten law is that which usage has approved, for daily cus- 
 tqms established by the consent of those who use them take the charac- 
 ter of law." 
 
 The third title is "Of the right of persons" and begins by dividing 
 persons into freemen and slaves, "slavery is when one man is subject to 
 the dominion of another according to the law of nations, though con- 
 trary to natural right." Slaves are defined as the issue of slave women, 
 captives sold as such and persons above the age of twenty who allow 
 themselves to be sold for a share of the price. The child of a woman 
 free at the time of conception, or during pregnancy, or at the time of 
 birth was free. A free man who became a slave and was afterward 
 manumitted regained the status of a free man. Slaves might be manu- 
 mitted in a great variety of wj^ys, by public declaration in the face of 
 the church or the presence of friends, by letter or by will, and at any time. 
 Prior to Justinian's legislation freedmen were divided into three classes, 
 those who obtained the greater liberty and became Roman citizens, those 
 who became Latins, and the Dedititii who were little less than slaves still. 
 Justinian abolished these distinctions and made all freedmen citizens. 
 An insolvent master could not manumit his slaves and thereby deprive 
 his creditors of payment. An insolvent master might make a slave his 
 heir and thereby give him his freedom, charged with the payment of the 
 master's debts. A slave made heir by the will of his master became free, 
 whether so declared or not. By the law Fusia Caninia masters were 
 limited in manumitting by testament. Justinian abolished the restrictions. 
 Originally the master had full power to inflict death on a slave, and the 
 property acquired by the slave of course belonged to the master. By the 
 
INSTITUTES OF JUSTINIAN 1067 
 
 constitution of Antoninus restrictions were placed on the power of mas- 
 ters to inflict extraordinary punishments, and in cases of gross ill treat- 
 ment it was provided that the slave might be sold to another master and 
 the price given in lieu of the slave. The patria potestas over children 
 v/as preserved with substantial modifications under Justinian. Sons in 
 pote state could only marry with consent of the father, but if he were 
 non compos a son or daughter might marry without his consent. Mar- 
 riage with persons related in direct line, whether by blood or adoption, 
 was prohibited, and also among collaterals within the limits of brothers 
 and sisters, uncles and nieces or great nieces. A man could not marry 
 his aunt by blood or adoption, nor his great aunt, but marriages between 
 first cousins were allowed. Marriage with a wife's daughter or a daugh- 
 ter-in-law was prohibited, also with a wife's mother or a step-mother 
 and all polygamy was forbidden. A son of a husband by a former wife 
 might marry the daughter of a wife by a former husband and e contra. 
 Children born out of lawful wedlock were not under the power of the 
 father and did not inherit from him. A natural son who was made a 
 Decurian became subject to the father's power, and subsequent legal 
 marriage legitimated children born before it. Adopted children were 
 subject to paternal power the same as natural only where the adopting 
 parent was of his blood. Adoption might be as a grand-son or grand- 
 daughter. By adrogation the whole family of the adopted son passed 
 under the power of the adopting parent. Adrogation was by imperial 
 rescript and only allowed on conditions and compliance with certain forms. 
 At the death of the father the sons became independent, but grand- 
 sons came under the power of their father, if living and they had not 
 been emancipated. If the father were sentenced for a crime to be de- 
 ported to an island to work as a slave in a mine, his sons ceased to be 
 under his power. Although a son were a soldier, a senator or a consul 
 he was still under his. father's power, but the emperor by conferring the 
 patrician dignity on him emancipated him from his father's power. 
 Parents were allowed to manumit their children and grandchildren be- 
 fore the' proper magistrate, and they might emancipate a son and retain 
 power over his children or grandchildren. Parents might assign tutors 
 to children not arrived at the age of puberty, and in default of such a 
 testament the agnates, nearest male relation on the father's side, were 
 vested with the tutelage, which corresponded for their protection to the 
 paternal power, during infancy. Tutors of children not so provided for 
 might be appointed by governors of the provinces, praefects and prae- 
 tors, and, where the estate was small, by the inferior magistrates. The 
 tutors administered the affairs of their pupils, and were bound to account 
 to them for their estates when they arrived at the age of puberty. A 
 person contracting with the pupil bound himself, but not the pupil. 
 Tutelage terminated at the age of fourteen in males and twelve in 
 females, and thereafter the estates of minors were placed under the 
 charge of curators until they were twenty-five years old. Curators were 
 
io68 APPENDIX 
 
 appointed by the same magistrates as the tutors, and testamentary cura- 
 tors had to be confirmed by the magistrate. Curators were also ap- 
 pointed for the insane, deaf mutes or other incompetents, who were not 
 able to manage their affairs. Tutors and curators might be compelled 
 to serve and elaborate provisions were made to insure their faithfulness. 
 A. rather singular title is that which treats of diminution of condition of 
 the person, of which there were three degrees. The greater is when a 
 man loses both his liberty and rights as a citizen, the less or mesne when 
 he loses his rights as a citizen but retains his liberty, and the least when 
 an independent man comes under the power of another by adoption, or 
 when a son is emancipated by his father. The right of fishing in rivers 
 and ports is declared to be common. 
 
 The first book of the institutes treats of persons, the second of the 
 division of things and the acquisition of dominion over them. Things 
 common to mankind are declared to be the air, running water, the sea, 
 rivers, ports, all the seashore over which the greatest winter flood ex- 
 tends, the banks of rivers, theatres, public grounds of a city, churches, 
 the walls of a city, grounds used for burial and other consecrated uses. 
 Riparian ownership of river banks was allowed, but not of the sea coast. 
 Property in wild beasts birds and fish was dependent on possession, and 
 in case of escape the title was lost. Property in wild bees was gained 
 by hiving them, and fresh swarms belonged to the owner of the hive 
 from which they came out so long as they remained in sight of the 
 owner, after that they belonged to the taker. Geese and fowls were 
 subjects of ownership. Whatever was taken from enemies in war, in- 
 cluding captives, belonged to the captors. Whatever was gradually added 
 to land by alluvion became the property of the land-owner, but if sud- 
 denly moved in a body it remained the property of the former owner. 
 An island formed in a river belonged to the riparian proprietors in equal 
 parts if in the middle, and to the one if on one side of it. The title to 
 articles manufactured from the material of anothe'r was in the owner of 
 the material, if in such form that it could be again reduced to the 
 material of which it was made, otherwise it belonged to the manufac- 
 turer. Where materials were mixed by consent, the whole belonged to 
 both in common. If one built a house on his own land with the materials 
 of another he became the owner of it, but liable to pay double value 
 for the materials, and if one built with his own materials on land of 
 another the house belonged to the owner of the land. But one in bona 
 fide possession of land might be protected by exception of fraud against 
 the claim of the owner, who refused to pay the value of the materials 
 and cost of the labor. A tree planted in the ground of another belonged 
 to the owner of the land. Grain also belonged to the owner of the 
 soil, but the sower, if acting in good faith, might also be protected by 
 an exception of fraud. A poem written on the paper or parchment of 
 another belonged to the owner of the material, but the writer, if in 
 possession of the material in good faith, might demand pay for the 
 
INSTITUTES OF JUSTINIAN 1069 
 
 writing. A different rule was applied to a picture painted on the tablet 
 of another, the painter being allowed to keep it on payment for the tablet. 
 
 The bona fide occupant of land by defective title was not required to 
 account for mesne profits, but could hold only the fruits he actually had 
 gathered. A rather strange mixture of logic and moralizing occurs in 
 Lib. II T. I Sec. yj. "Among the produce of animals we not only 
 reckon milk, skins and wool but also their young, and therefore lambs, 
 kids, calves, colts and pigs, appertain by natural right to the usufructuary, 
 but the offspring of a female slave cannot be thus considered, but belongs 
 to the proprietor, for it seems absurd that man should be included as 
 produce when nature has furnished all kinds of produce for his use." 
 It certainly seems absurd that the child of the slave should be the 
 property of the one entitled to the use of the mother, and equally so 
 that it should belong to the master. 
 
 The ancient distinction between res mancipi and res nee mancipi, which 
 had lost much of its significance, was entirely obliterated by Justinian, 
 who provided: "Things are also acquired by traditions, for nothing is 
 more conformable to natural equity than to confirm the will of him who 
 desires to transfer his property to another, therefore corporeal things of 
 whatever kind may be delivered and when delivered by the owner are 
 aliened. Stipendiary and tributary possessions, in the provinces, may be 
 aliened in the same manner, for between these and the Italian estates we 
 have now taken away all distinction, so that on account of a donation, 
 a marriage portion or any other cause, stipendiary and tributary posses- 
 sion may undoubtedly be transferred by livery"; but it is provided that 
 where the price is not paid or secured or credit given the title remains 
 in the seller. The owner of the thing sold might entrust the delivery to 
 another, who could deliver with equal effect. Property in a store house 
 might be delivered by delivering the keys. Where the owner of goods 
 threw them away, the finder got good title to them, but if thrown out 
 of a ship in a storm to lighten it, anyone finding and appropriating the 
 goods to his own use was guilty of theft. Things are divided into cor- 
 poreal and incorporeal. "Things corporeal are tangible as lands, slaves, 
 vestments, gold, silver and other things innumerable. Things incor- 
 poreal are those which are not tangible, but consist in rights and privi- 
 leges, as inheritances, usufructs, uses and all obligations however 
 contracted. "Of the same class are rights of rural and city estates 
 termed servitudes." Servitudes of passage ways and aqueducts, over 
 lands and of support from walls in cities, etc. are defined, and are said 
 to require an estate in land to support them, the servitude being attached 
 to the realty and not a personal privilege. 
 
 Usufruct is defined to be the right of using and enjoying without con- 
 suming the property of another. A usufruct could only be created by 
 will, by fact or stipulation, and might be of lands, houses, slaves, cattle 
 and other things, except those which are consumed in the use. The 
 
1070 APPENDIX 
 
 usufruct terminated on the death of the usufructuary, and also by the 
 greater and middle diminution of condition, and from misuse of the 
 thing given. On termination of the usufruct the whole property revests 
 in the proprietor. A distinction was further drawn between the usufruct 
 and naked use, the former might be transferred, but the latter was 
 personal and could not be. 
 
 Possession obtained in good faith of movables ripened into full title in 
 three years, and of things immovable in ten years, if the parties are 
 present and twenty years if one be absent, but no title could be gained 
 by prescription of a free person, a fugitive slave or a sacred religious 
 thing, nor for things stolen or seized by violence, even though bought 
 in good faith, nor for things belonging to the imperial treasury. The 
 possession of the ancestor and heir might be joined in making a pre- 
 scription, as also that of seller and buyer. Title to property might also 
 be passed by donation. This might be in anticipation of death, and not 
 to take effect except on the event of the death of the donor, or a simple 
 gift inter vivos. A donation might in some cases be revoked for in- 
 gratitude. Donations in consideration of marriage, both antenuptial and 
 post-nuptial, were recognized. A husband was prohibited from aliening 
 or mortgaging property obtained as a marriage portion with his wife, 
 even with her consent. 
 
 By the ancient law everything acquired by children under the power 
 of the father, except the peculium castresne, property acquired by the 
 son in military service, belonged to the father, but this rule was modi- 
 fied by Justinian, so that the father's full title extended only to that which 
 was acquired by the 5on by means of the father's property. Whatever 
 the son acquired by his own exertion remained his, subject to the right 
 of the father to the usufruct of it. The father might emancipate the son, 
 and in that case was entitled to the usufruct of one-half the property 
 of the son as the price of emancipation. As to the acquisitions of slaves 
 the master took everything. Where a slave was merely held in usufruct, 
 the proceeds of his labors and dealings went to the usufructuary, but 
 whatever he gained by other means, as gifts or inheritance, went to the 
 proprietor. 
 
 A most important title of the law is that relating to testaments and in- 
 heritances. Great formalities were required in making testaments. It 
 must be in writing, signed and sealed by the testator and seven witnesses, 
 all in the presence of each other and at one time; and the name of the 
 heir was required to be expressed in the handwriting of the testator or 
 a witness. Women, minors under the age of puberty and slaves were 
 incompetent as witnesses. No person under power of the testator could 
 be a witness. Neither the heir nor his father or brothers under power 
 of the father could be witnesses, but legatees were not rejected. The will 
 might be written on a tablet of wax, paper, parchment or any other 
 substance. A nuncupative will might be made without writing in the 
 
INSTITUTES OF JUSTINIAN 1071 
 
 presence of seven witnesses. Strict formalities in making wills were dis- 
 pensed with in the case of soldiers in actual service, and by the rescript 
 of Trajan it was declared, that if the soldier "did in the presence of 
 witnesses, purposely called, declare what person should be his heir and 
 to what slaves he should give liberty, he shall be reputed to have made 
 his testament without writing and his will shall be ratified." Persons 
 under the power could not make a will, except of property acquired by 
 military service. To disinherit a child it was necessary to mention him 
 in the will, and this applied also to a posthumous child, to grandchildren 
 whose parents were dead and to adopted children male and female. 
 This rule did not apply in case of a soldier in actual service, a mother 
 or a maternal grandfather. A testator might make his own slave his 
 heir, but, if he named the slave of another, the gift could only be ac- 
 cepted by the master's order. The testator might name as many heirs 
 and in such proportions as he pleased. A testator might provide for a 
 substitution in case the heir named died within the age of puberty, but 
 not for an heir above that age, except by gifts in trust, fidei-commissum. 
 Slaves and children under the power were bound to accept the inheri- 
 tance and thereby to pay the debts of the testator, but a stranger named 
 as heir could accept or reject at pleasure. Justinian modified the law 
 so as to allow an acceptance chargeable with debts only to the value of 
 the estate. A legacy was defined as "a gift directed by the deceased to 
 be fulfilled by the heir." Specific property belonging to another might be 
 given as a legacy, so that the heir would be bound to buy and deliver it 
 or pay the value of it. Legacies might be of lands, slaves and debts as 
 well as of money or chattel property. Very minute provisions were made 
 for the construction and effect of wills, both in nominating heirs and 
 legatees. The peculiar principles governing the Roman family and the 
 possession of slaves, who might be affected by change of condition, oc- 
 casion many refinements and distinctions in the law. Not more than 
 three-fourths the inheritance was allowed to be given in legacies. An 
 important branch of the law was that relating to trusts, fidei-commissum. 
 This was a direction or request that the heir deliver the whole or a part 
 of the estate to another in accordance with the terms imposed by the 
 testator. At first compliance with such requests was not compulsory, but 
 dependent on the good faith of the heir, but from the time of Augustus 
 they were treated as binding and enforced by the praetors. The law with 
 reference to these trusts was filled with nice questions and many re- 
 finements. As in case of legacies the trust might be to procure and 
 deliver property belonging to another, in which case the heir must procure 
 and deliver it or pay the value. The will might direct the manumission 
 of a slave either of the testator or of another owner, and in the latter 
 case the heir was bound to buy and manumit the slave. Property might 
 also be disposed of by a codicil, which required no solemnity of execu- 
 tion, and did not necessitate the execution of a testament. An heir 
 
1072 APPENDIX 
 
 could not be made by a codicil, but property could be taken away from 
 the heir by means of a trust. Testaments improvidently made could be 
 avoided as to one-fourth of the estate on complaint of children under 
 certain conditions. In default of a valid testament inheritances went 
 to the proper heirs "suos haeredes." who at the death of the deceased 
 were under his power; children inherited equally and descendants of 
 deceased children took the shares of their parents. When there were no 
 lineal descendants, the inheritance passed to the nearest agnates i.e., those 
 related through males, to the exclusion of the cognates; those related 
 by adoption took the same as if related by blood. This rule was modi- 
 fied so as to admit sons and daughters of a sister to inherit from a 
 deceased uncle along with the agnates, but their descendants could not 
 take as long as there were agnates. The whole of the inheritance 
 passed to those in the nearest degree equally. Mothers might inherit 
 from sons who died without issue. In case of a failure of proper heirs 
 or agnates the succession passed to cognates. Agnates related in the 
 tenth degree might inherit, but cognates only to the seventh. The 
 •degree of relationship of two persons was computed by counting from 
 one to the common ancestor and from him down to the other, each 
 generation in each line counting as a degree. The estate of a freed 
 man in default of proper heirs went to his patron, and in certain cases 
 the patron of a wealthy freedman was entitled to a share with the 
 children of the freedman. Where no one succeeded to an estate as heir, 
 the goods might be sold for the payment of debts. The subject of 
 the disposition of property of deceased persons fills a full third of the 
 Institutes. 
 
 The next title is De Obligationibus, which are divided into civil and 
 Praetorian, and again into obligations by contract, by quasi-contract, by 
 malfeasance and by quasi-malfeasance. Obligations by contract were 
 classified as arising from a thing, from words, by writing or by consent 
 of parties. The first of these was termed a mutuum and included loans 
 of money or goods of any sort to be returned in kind, and which could 
 be enforced by the action certi condictio. In the case of the mutuum the 
 property in the thing passed by the transfer. Where the article de- 
 livered was to be used and returned, it was called a commodatum. In 
 case of the mutuum the receiver was bound absolutely to make return, 
 but in case of the commodatum he was held to the highest diligence in 
 taking care of it, but not liable for loss by superior force or extraor- 
 dinary accident, unless he took the thing abroad and lost it through 
 perils of the journey, in which case he was liable. In case of a deposit 
 the depositary was only liable for loss through his fraud and not for 
 negligence. In case of a pledge to secure a debt the bailee was held 
 to strict diligence in preserving the property. Verbal obligations arose 
 from question and answer, and the forms anciently in use are given 
 thus. Spondes? Do you undertake? Spondeo. I undertake. Promittis? 
 Do you promise? Promitto. I promise. Dabisf Will you deliver. 
 
INSTITUTES OF JUSTINIAN 1073 
 
 Dabo. I will deliver. These particular words are however declared un- 
 necessary, and any forms of expression having the same meaning are 
 equally binding. The performance of a contract might be required im- 
 mediately and absolutely, in the future, or conditionally on the happening 
 of some event, and was given effect according to its terms, but where 
 acts were stipulated for, a penalty for non performance was necessary. 
 Two or more persons might be bound to perform the same obligation or 
 entitled to enforce it, but a single payment discharged all. Of two 
 promissors one might be bound absolutely and the other only condition- 
 ally. The contracts of a slave inured to the benefit of his master, and, 
 if owned by several masters, to each in proportion to his ownership. 
 There were judicial stipulations, where security was required by a judge 
 against fraud, or for pursuing a slave who had fled; Praetorian stipula- 
 tions, required to insure compliance with some order, and conventional 
 stipulations, "and of these stipulations there are as many kinds as of 
 things to be contracted for." All manner of property was subject to 
 stipulation, but slaves and persons under the power could not stipulate 
 with their masters, though a son could bind himself by his contract with 
 a person other than his father. Pupils under tutorship could only con- 
 tract with the consent of their tutors, and the contracts of madmen, 
 mutes and deaf persons were invalid. A verbal obligation between absent 
 persons was void, but a writing was valid, unless it could be clearly 
 shown that one or the other of the parties to the contract was absent 
 from the place where it was made during the whole day of its date. 
 A stipulation might be made to take effect just before or after the death 
 of the obligor or obligee, though before Justinian's time it would not 
 have been binding. No man could stipulate for another. "Therefore 
 if a man should stipulate that a certain thing shall be given to Titus it 
 will not avail, but, if he add a penalty as do you promise to give me so 
 many aurei if you do not give the thing stipulated to Titus, the penalty 
 may be enforced." But a stipulation for the benefit of the stipulator and 
 another was good. One who undertook for the performance of another 
 was not bound, unless he promised under penalty. A stipulation was 
 ineffectual where it failed to show that the parties referred to and 
 agreed on the same thing, or where performance was illegal, immoral 
 or impossible. Suretyship was recognized and enforced against the fide- 
 jussors in all kinds of contracts. The custom of money lenders, then as 
 now, was to exact security, and the fide-jussor stood in the same case as 
 the modern surety. He and his heirs alike were held, and his obligation 
 might precede or follow the contract of the principal, and each surety 
 was bound for the whole debt. Contribution among sureties was not 
 enforced, unless demanded at the time of the suit on the obligation. If 
 one surety paid the whole debt of an insolvent principal he had to bear 
 the whole loss. The obligation of the surety might be less, but never 
 greater than that of the principal, and the fide-jussor might recover the 
 
I074 APPENDIX 
 
 sum paid from his principal. A written obligation for the payment of 
 money could not be avoided on the ground that the money was not ad- 
 vanced, unless an exception was brought within two years. "Obligations 
 are made by consent in buying, selling, letting, hiring, partnerships and 
 mandates. An obligation thus entered into is said to be contracted by 
 consent, because neither writing nor the presence of parties is absolutely 
 necessary. Nor is delivery necessary to make the contract take effect, 
 for it suffices that the parties consent, hence these contracts may be 
 entered into by absent parties by letters or messengers." "The contract 
 of buying and selling is perfected as soon as the price is agreed upon, 
 although it is not paid nor even an earnest given." A distinction is 
 drawn between sale and barter, and in support of it a passage from the 
 Iliad is quoted. On a sale the buyer at once becomes liable for the price 
 and subject to the risk of loss, whether delivery was made or not, but 
 a sale might be conditional. In distinguishing sales from contracts of 
 location and conduction, letting and hiring, a singular question is sug- 
 gested, namely where lands are transferred in perpetuity with a reserva- 
 tion of a fixed yearly rental, whether this is a sale or a hiring. It was 
 finally settled that it was neither, but a contract resting on its own 
 terms and under which, if there were no express provision otherwise, in 
 case of a total destruction of the property the loss should fall on the 
 proprietor, but a partial loss must be borne by the tenant. The hirer of 
 property was bound to take such care of it as the most diligent would 
 take of his own. 
 
 General partnerships as to all kinds of business, and special as to 
 a single line, were recognized, and also the right to share profits and 
 losses in any proportions agreed on, but the share of gain only was 
 mentioned in the contract, losses were governed by the same rule. A 
 partnership might be determined at the pleasure of either party, but, if 
 one renounced to gain a fraudulent advantage, he might be compelled 
 to share it with the other partner. Death of a partner or a sale of all 
 his property to pay his debts also worked a dissolution of the partner- 
 ship. Partners were held to the same care in the management of the 
 partnership property that they exercised with reference to their own. 
 
 Mandates for the transaction of any business were divided into five 
 classes, solely for the benefit of the mandator, jointly for his benefit 
 and that of the mandatary, solely for the benefit of a third person, 
 jointly for the mandator and a third person or jointly for the benefit of 
 the mandatary and a third person, but a mandate solely for the benefit 
 of the mandatary was null! A mandate could only be for a lawful act, 
 and was revokable before performance. Th mandatary might refuse 
 to accept the mandate as he pleased, but having accepted he was bound 
 to perform or promptly renounce, and an action of mandate was given 
 to enforce performance. 
 
 Quasi contracts resulting from transactions not expressly authorized, 
 or from dealings necessitated by the relation of the parties, as tutor and 
 
INSTITUTES OF JUSTINIAN 1075 
 
 pupil or tenants in common of lands, heir and legatee, payments by 
 mistake, etc. were recognized as binding and enforceable. Obligations 
 might be discharged by payment by the debtor or by any one for him 
 or by acceptillation. By what was termed the Aquilian stipulation, all 
 forms of obligation might be reduced to a set form and discharged by 
 an acceptillation, by which payment in full was acknowledged. An ob- 
 ligation might also be discharged by a novation, through which another 
 took the place of the original debtor, but to constitute a novation the 
 intent to discharge the original debtor must be expressed, otherwise 
 both the original and subsequent promissor would be bound. 
 
 Obligations might also arise from malfeasance and quasi-malfeasance. 
 Thefts were divided into manifest, where the thief was caught in the 
 act or while carrying away the stolen property, and not manifest, where 
 not so caught. A theft was called conceptum when the thing stolen 
 was found on the person in the presence of witnesses. For a manifest 
 theft the thief was liable to pay quadruple, and for theft not manifest 
 double, the value of the thing stolen. The conversion of a pledge or 
 of property otherwise entrusted to a bailee without the consent of the 
 bailor was regarded as a theft. ' Theft of the person might be committed 
 of free persons under the power, and a debtor might steal his own 
 property, as in case of a pledge. Accessaries were liable as well as 
 principals, but no action of theft could lie between parents and children 
 or master and slave, though it might against the accessary of the child 
 or slave. The action might be brought by any person interested in the 
 safety of the thing stolen, as a creditor or bailee for a pledge. Where 
 property was loaned, the owner might sue the thief or the borrower, but 
 not both. An action of theft was always for the penalty, another and 
 separate form of action being allowed for the recovery of the property. 
 Where property was taken by force, by the action vi bonorum raptorum 
 the owner might recover quadruple damages, whether manifest or not 
 manifest, if brought within one year, but if afterward, the single value 
 only, but the recovery included the value of the property which could 
 not be specifically recovered. Where property was forcibly seized under 
 a claim of ownership or right, the taker was liable to a penalty of the 
 value of it, and this applied to forcible seizure of houses and lands as 
 well as of movables. 
 
 An action for injurious damage was given for killing a slave or cattle. 
 No liability attached for necessarily killing a robber, or for killing an- 
 other by accident without fault. If a soldier killed a slave while exercis- 
 ing in his appointed place he was not liable, but any other person killing 
 a slave by accidentally striking him with a javelin was liable. A surgeon, 
 who having performed an operation on a slave allowed him to die of 
 neglect, was liable, as also for want of skill. A mule driver, who killed 
 a slave from want of care or skill as a driver, was liable. One who 
 killed a slave or beast of another was liable for the highest price which 
 
I076 APPENDIX 
 
 the slave or beast would have brought within that year, and if a slave 
 should have been made heir and killed before entry into the heirship 
 and the inheritance be thereby lost to the master, this also might be 
 added as damages. Other consequential damages were also recoverable. 
 Both a civil and a criminal action might be prosecuted by the master. 
 An action was also allowed for every injury to slaves, cattle or property,, 
 but the recovery was limited to the highest price that could have been 
 obtained within thirty days previous to the injury. An action was given 
 for slander, libel, insults to women and various other wrongs, and 
 damages awarded according to circumstances, among which were the 
 condition of the injured person, "so that one estimate may be adopted 
 in the case of a steward or agent and a lower one in the case of an 
 inferior slave." An injury might be aggravated by the place of its com- 
 mission, as in the theater, market or presence of the praetor, or by the 
 rank of the injured party, and an injury inflicted on a senator by one 
 of mean condition, on a parent by a child or a patron by his freedman,, 
 called for a heavier punishment than where the parties were equal in 
 rank. For every injury the injured party might prosecute a civil or 
 criminal action, and the suit might also be maintained against one who 
 counseled or caused the injury to be done, but the right of action was 
 lost unless complaint was promptly made. 
 
 A judge might be sued by an action of quasi-mal feasance for giving an 
 unjust judgment, and was subject to such penalty as a superior judge 
 might impose. The occupier of a chamber, from which anything was 
 thrown or spilt causing damage, was liable for the injury regardless of 
 the person who committed the act, and must pay double damages. The 
 master of a ship or inn was liable to be sued for quasi-malfeasance for 
 every theft or damage committed in his ship or inn. Actions in court 
 were divided into those in personam, where it was sought to enforce a 
 contract, recover damages or compel the performance of some act or 
 duty, and in rem where the subject of the action was some specific prop- 
 erty, whether recovery of the thing itself was sought or merely the 
 enforcement of a right with reference to it, as of an easement. Fictions 
 were allowable to enable a trustee, who, having no title to the property 
 entrusted to his care, should be deprived of the possession of it, to> 
 recover by alleging a prescriptive right. Goods of a debtor, fraudulently 
 transferred to avoid payment, might be recovered by the creditors. There 
 were many and varied forms of action for the enforcement of dififerent 
 rights in personam and in rem. Although fathers and masters were not 
 legally bound for the debts of sons and slaves, an action de peculio was 
 allowed against them, so that a recovery of the debt of the son or slave 
 might be had to the extent of his peculium or separate estate. Actions 
 were also allowed to determine whether a person was free or slave, 
 legitimate or bastard, and these were classed as actions in rem. There- 
 were also mixed actions, as for goods taken by force, in which a re- 
 covery of both the price of the goods taken and triple its value as-. 
 
INSTITUTES OF JUSTINIAN 1077 
 
 damages was allowed. The idea of mixture rests, not on recovery of 
 the property itself and damages, but value and penalty. Another kind 
 of mixed action, more logically so-called, was for the division of prop- 
 erty among heirs or tenants in common, in which the judge had power 
 to apportion the property in equal or unequal proportions and award 
 compensation to those receiving less than their sHare. "All actions are 
 for the single, double, triple or quadruple value; for no action extends 
 farther."^ The single value was sued for on a stipulation, a loan, a sale, 
 a purchase, letting and hiring, a mandate, and very many other causes, 
 the double value in actions of theft not manifest, of injury by the law 
 Aquilia and some cases of deposit, also for corrupting a slave or de- 
 taining a legacy left to a holy place, for triple value when any one 
 inserts a greater sum than is allowed in a libel of convention, that 
 officers may exact a greater fee from the defendant; for quadruple value 
 for manifest theft, putting in fear, for giving money to another to 
 corruptly influence him to do or not do a particular business, or for 
 extorting illegal fees from a defendant. Actions were also classified 
 as of good faith or strict right. Those of good faith were from buying 
 and selling, letting and hiring, business transacted, mandate, deposit, 
 partnership, tutelage, loan, pledge, partition of things owned in common, 
 the demand of an inheritance and those in prescribed words for estimates 
 and commutation. In all actions of good faith the judge had full power 
 to determine according to justice and right how much should be restored 
 to the plaintiff, and to deduct from the recovery any sum due from 
 the plaintiff to the defendant, and this right of set off was extended 
 to cases of strict right, except for deposits. Some actions were styled 
 arbitrary, where the judge was allowed to exercise his discretion in 
 awarding judgment. If a plaintiff intentionally demanded more than 
 his debt, unless a minor or acting under mistake in certain cases, he 
 lost his debt under the ancient practice, but this was modified so that 
 a penalty of triple damages was substituted, though to just what cases 
 this applied it is difficult to determine. If a plaintiff modestly asked 
 less than was due, he might still recover the whole amount. Where 
 there was a mistake in describing the property sought, an amendment 
 was allowed to correct it. In some cases a suit might be for the whole 
 or so much as the situation allowed, as for the debt of a son or slave 
 to be paid only out of his peculium, or where a woman sued for her 
 marriage portion where the husband was unable to pay the whole. In 
 these cases the judgment would be for the amount of the peculium 
 or the husband's estate. "If any one sues his parent, patron or partner, 
 the plaintiff cannot recover a greater sum than his adversary is able to 
 pay. It is the same if one is sued for his donation.'" Where a debtor 
 turned out all his property to his creditors and afterward acquired more, 
 
 ' Lib. IV-Tit. Xl-Sec. XXI. 
 ^Lib. IV-Tit. Vl-Sec. XXXVIII. 
 
I078 APPENDIX 
 
 they might sue for the balance unpaid, but could not recover judgment 
 for more than the debtor was able to pay. A master could be sued 
 on contracts made by his slave by his direction, and for contracts in a 
 business entrusted to the slave, and also for the contracts of a free 
 person or the slave of another entrusted with the conduct of his 
 shop or business. Where a slave borrowed money and expended the 
 whole or a part for the benefit of the master, the master was liable 
 to pay all that was expended for his benefit, and the slave's peculium 
 only was liable for the balance. Different forms of action, called 
 tributoria, de peculia and de in rem verso, were adapted to the different 
 classes of cases against a master on account of the transactions of 
 his slave. Similar rules applied to the dealings of children under the 
 power, but a suit could not be maintained either against the child or 
 parent for money lent the child while under the power. 
 
 Noxal actions were allowed against the master for the thefts, robberies 
 and injuries of his slaves, and the master might pay the judgment or 
 surrender the slave in satisfaction of it, and if the slave could satisfy 
 his new master in money he might be manumitted on application to the 
 praetor, against the will of the new master. A noxal action followed 
 the ownership of the slave, and in case of a sale the new master became 
 liable, and of manumission the freedman himself. A cause of action 
 against a free man, who afterward became a slave, was converted into a 
 noxal action against the slave. No cause of action could arise in 
 favor of d master against his slave, nor in favor of the slave against 
 the master. Under the ancient law a similar forfeiture for the act 
 of son or daughter was allowed as in case of a slave, but this ceased 
 to be the law before Justinian's time. Noxal actions were allowed for 
 injuries caused by horses, cattle, etc. which were accustomed to do 
 such injury, and by giving up the animal the owner was discharged 
 from further liability. There was no liability for injuries caused by 
 dogs or wild beasts, unless kept near a road or passage way, in which 
 case the keeper was liable for double damages. 
 
 A suit might be brought in the name of the party interested or of a 
 procurator, tutor or curator, though by the ancient law suit in the 
 name of another was only permitted in a public cause, for liberty or 
 tutelage. Whoever was appointed to sue for another was called a 
 procurator, and no particular formality of appointment was required. 
 By the ancient practice a defendant was required to give security for 
 the performance of the judgment, and where a suit was brought by a 
 proctor, tutor or curator, he had to give security that his acts would 
 be ratified by his principal, but by the law of Justinian's time a de- 
 fendant was not required to give security for the payment of the 
 judgment, but only for his personal appearance till the cause was ended, 
 and this security might be with sureties or by a promise with or without 
 oath according to the quality of the defendant. If a procurator failed 
 
INSTITUTES OF JUSTINIAN . 1079 
 
 to produce written authority or confirmation of his power to act by 
 his client in court, he was required to give security for the ratification 
 of his acts. A defendant when sued might appear, name his procurator 
 and give the required security or, in case of his failure to appear, 
 any other person might defend for him on giving security for the payment 
 of the judgment. 
 
 There were various limitations as to the time within which an action 
 might be brought, those given merely by the praetor's authority being 
 generally limited to a year, the duration of his term of office, while those 
 arising under the laws, the decrees of the senate and edicts of the em- 
 perors, were mostly allowed for a longer period, and an action for 
 manifest theft was perpetual. Penal actions arising from theft, robbery, 
 injury and consequential damages could not be maintained against, but 
 might be in favor of the heir, except actions of injury. Not all actions 
 on contracts survived to the heir, as where a testator commits a fraud 
 through which nothing is added to the property of the heir. Judgments 
 in penal actions contested by the principals, however, passed both to and 
 against the heir. An action might be settled and dismissed at any time 
 before judgment on payment by the defendant. A defendant sued on a 
 contract extorted by fraud or fear was allowed an exception of fraud 
 or fear, and in a suit on a stipulation for the repayment of money the 
 defendant might have an exception pecuniae non memeralae, that he had 
 not received the money. Exceptions were of many kinds, some allowed 
 by law, some by the authority of the praetor, some were perpetual, 
 and peremptory, others temporary and dilatory, the former barring, 
 the latter merely delaying the action; but a plaintiff was subject to 
 costs and a penalty for commencing suit prematurely. A soldier or a 
 woman could not act as a procurator. To the exception of the de- 
 fendant the plaintiff might plead matter of avoidance by replication, 
 to which, though apparently sufficient, the defendant might reply by a 
 triplication, and so on till an end was reached. Whatever defense a 
 debtor could make was generally available equally to his bondsmen, 
 except where the debtor turned over all his goods, and was entitled 
 to an exception si bonis cesserit. 
 
 Interdicts were forms of words by which the praetor commanded or 
 prohibited something to be done, and were mainly used in controversies 
 concerning the possession of property. They were divided into pro- 
 hibitory, restoratory and exhibitory, by which the purpose of each is 
 fairly expressed, the latter supplying to some extent the place of our 
 writ of habeas, and by which the production of a slave, freedman or 
 child might be required and rights with reference to his custody de- 
 termined. By an interdict called Quorum Bonorum the possession of 
 goods of a deceased person might be taken from the heirs and given 
 to a person appointed to take charge of them by the praetor. For 
 the retention of possession of property there were interdicts styled uti 
 
io8o APPENDIX 
 
 possidetis for the retention of houses and lands and utrubi for the 
 possession of movables, ownership depending in many cases on possession, 
 which might be maintained in person, by another or even by intention. 
 An interdict for the recovery of possession, called unde vi, was allowed 
 where one had been forcibly evicted from house or land, and the 
 penalty of forcible seizure of property was that the guilty party forfeited 
 the property if it belonged to him, and if it did not, not only was he 
 required to make restitution, but also to gay the value of it as a penalty 
 for the seizure. Interdicts might be simple or double, simple where 
 the plaintiff required something to be exhibited or restored. Uti 
 possidetis and utrubi were double interdicts in which each party was 
 regarded as much plaintiff and defendant as the other. 
 
 A defendant could not plead to an action till he swore that he 
 believed his defense to be valid. In some cases by a denial the de- 
 fendant exposed himself to double damage. A plaintiff was also required 
 to swear that he did not sue maliciously, but believing he had a good 
 cause. The advocates on both sides were also required to take a 
 similar oath. An unjust litigant was liable to pay damages and costs 
 of suit to his adversary. In some cases infamy resulted to the party 
 condemned in a civil suit, as of theft, robbery, injury and fraud, and 
 also of tutelage, mandate, deposit and partnership. 
 
 The first step in a law suit was in jus vocando, calling the adverse 
 party into court. Children and freedmen were not allowed to call 
 their parents or patrons into court without first obtaining leave of the 
 praetor. Judges were admonished not to decide otherwise than as the 
 laws, constitutions and customs directed. The form given for a judg- 
 ment in a noxal action is certainly a model of brevity and definiteness. 
 "Puhlium Moevium Lucio Titio in decern aureos condemni aut noxam 
 dedere." In actions in rem the recovery was not only of the property 
 but of its fruits and increase as well. 
 
 Public actions were such as might be prosecuted by anyone. Among 
 capital offenses were enumerated any act against the emperor or the 
 republic, adultery, sodomy, murder, rape, carrying weapons for the 
 purpose of killing and causing death by magic or by the sale of poison 
 medicines. For the crime of parricide, deemed most execrable of all, 
 the law Pompeia prescribed the following punishment, "he shall be 
 sewed up in a sack, with a dog, a C(5ck, a viper and an ape, and being 
 confined in this narrow deadly enclosure shall be thrown into the sea 
 or river according to the situation of the place." The killing of a 
 child or any person occupying the relation of parent was within the 
 law. Forgery of a will or other instrument by a slave was punished 
 with death, by a freeman, with deportation. • Judges, who while in 
 office embezzled public funds, were punishable with death, as were also 
 their accomplices, but others for like offenses were punishable with 
 deportation only. Kidnapping also might be punished with death or a 
 
PENAL CODE OF CHINA 1081 
 
 milder punishment. Other offenses were generally less severely pun- 
 ished, by deportation, condemnation to work in the mines, fines and 
 forfeiture of goods. 
 
 The foregoing is a brief outline of the system of laws which had been 
 developed at Rome and in the empire during a period of approximatel;!^ 
 1300 years. 
 
 THE PENAL CODE OF CHINA 
 (Ta-Tsing Leu-Lee) 
 
 The following summary of the provisions of the penal code of China 
 is made from a translation of the code in force under the Ta-Tsing 
 dynasty, made by Sir George Thomas Staunton and printed by Cor- 
 dell & Davis, London, in 1810. This gives a view of the law as it 
 stood before it was materially modified by foreign influences. 
 
 Though denominated a penal code, it is not merely a code providing 
 punishments for the violation of what in European and American states 
 would be denominated crimes, but would be here denominated a code of 
 civil as well as criminal laws. 
 
 That the Chinese have long comprehended the necessity for fixed 
 rules governing the conduct and decisions of officers and magistrates, 
 is clearly shown by the concluding paragraph of the preface to the 
 edition published by authority of the emperor Shun-Chee, the first 
 of the Manchu dynasty in 1647. 
 
 "Wherefore, officers and magistrates of the interior and exterior 
 departments of our empire, be it your care diligently to observe the 
 same, and to forebear in future to give any decision, or to pass any 
 sentence, according to your private sentiments, or upon your unsupported 
 authority. 
 
 '"Thus shall the magistrates and people look up with awe and submission 
 to the justice of these institutions, as they find themselves respectively 
 concerned in them: the transgressor will not fail to suffer a strict ex- 
 piation for his offenses, and will he the instrument of deterring others 
 from similar misconduct; and, finally, the government and the people 
 will be equally secured for endless generations in the enjoyment of the 
 happy effects of the great and noble virtues of our illustrious progenitors." 
 
 The purposes sought to be accomplished by the laws as expressed in the 
 prefatory edict of the Emperor Kaung-Hee second of the present dynasty, 
 appear to be as commendable as those on which any European code or 
 American constitution is framed. 
 
 "The chief ends proposed by the institution of punishments in the 
 em^«, have been to guard against violence and injury to repress in- 
 ordinate desires, and to secure the peace and tranquillity of an honest 
 and unoffending community. 
 
io82 
 
 APPENDIX 
 
 "Laws have accordingly been enacted, numerous, as well as particular 
 in their application, and subsequently varied and augmented at different 
 times, as circumstances were found to require, but without ever losing 
 sight of those principles of affection and benevolence, of which our 
 Illustrious Predecessors, who laid the foundation of these institutions, 
 were invariably observant." 
 
 The manner of accomplishing these purposes, however, differs radically 
 from that pursued in the West. The code begins with preliminary tables 
 exhibiting the scale of punishments, the instruments to be used and rules 
 governing pecuniary payments to be made in lieu of corporal punishment, 
 and some other matters. 
 
 Table I 
 Scale of Punishment Offenses against Public and Private Property. 
 
 
 
 
 -1 
 
 H 
 
 
 3 
 
 
 
 •* G 
 
 
 fc « 
 
 u — 
 
 fl >. 
 
 B " 
 
 
 er-2 
 
 c 12 
 
 u > 
 
 
 
 
 II 
 
 3 
 
 111 
 
 .0. 
 
 p. 
 
 a. 
 
 H 
 
 n 
 
 pa 
 
 H 
 
 U 
 
 
 Amount in 
 
 
 
 
 
 
 
 oz. of 
 
 Ditto 
 
 Ditto 
 
 Ditto 
 
 Ditto 
 
 Ditto 
 
 
 Silver 
 
 
 
 
 
 
 20 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 I or less 
 
 
 . . . 
 
 . . . 
 
 
 • • . 
 
 30 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 I to 10 
 
 . . . 
 
 . . . 
 
 . . . 
 
 
 , , , 
 
 40 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 20 
 
 . . . 
 
 . . . 
 
 , . . 
 
 
 , . . 
 
 50 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 30 
 
 • . . 
 
 . . . 
 
 . . . 
 
 
 . . . 
 
 60 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 40 
 
 I or less 
 
 I or less 
 
 . . . 
 
 
 
 70 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 50 
 
 
 10 
 
 I or less 
 
 I or less 
 
 
 80 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 60 
 
 20 
 
 20 
 
 I to 5 oz. 
 
 I to 5 oz 
 
 I or less 
 
 90 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 70 
 
 30 
 
 30 
 
 10 
 
 10 
 
 I to 2, 5 
 
 100 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 80 
 
 40 
 
 40 
 
 15 
 
 15 
 
 5 
 
 60 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 
 
 
 
 
 
 and I year's 
 
 
 
 
 
 
 
 banishment 
 
 100 
 
 50 
 
 50 
 
 20 
 
 20 
 
 7,5 
 
 70 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 
 
 
 
 
 
 and 1 5^ year's 
 
 
 
 
 
 
 
 banishment 
 
 200 
 
 60 
 
 60 
 
 25 
 
 25 
 
 10 
 
PENAL CODE OF CHINA 
 Table I (Continued) 
 
 1083 
 
 
 1 
 
 ecuniary Mal- 
 versation 
 
 
 1 
 
 ribery for a 
 lawful object 
 
 ill 
 
 3 
 
 1 
 
 mbezzlement 
 of Public Pro- 
 perty 
 
 
 Ol, 
 
 H 
 
 CQ 
 
 « 
 
 H 
 
 U 
 
 
 Amount in 
 
 
 
 
 
 
 
 oz. of 
 
 Ditto 
 
 Ditto 
 
 Ditto 
 
 Ditto 
 
 Ditto 
 
 
 Silver 
 
 
 
 
 
 
 80 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 
 
 
 
 
 
 and 2 year's 
 
 
 
 
 
 
 
 banishment 
 
 300 
 
 70 
 
 70 
 
 30 
 
 30 
 
 12.5 
 
 90 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 
 
 
 
 
 
 and 2 J^ year's 
 
 
 
 
 
 
 
 banishment 
 
 400 
 
 80 
 
 80 
 
 35 
 
 35 
 
 15 
 
 100 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 
 
 
 
 
 
 and 3 year's 
 
 
 
 
 
 
 
 banishment. 
 
 
 
 
 
 
 
 Dist.lees and 
 
 
 
 
 
 
 
 upwards. 
 
 500 
 
 90 
 
 90 
 
 40 
 
 40 — 
 
 17.5 
 
 IOC blows with 
 
 and up- 
 
 
 
 
 
 
 the bamboo 
 
 wards 
 
 
 
 
 
 
 and perpet. 
 
 
 
 
 
 
 
 banish. 2000 
 
 
 100 
 
 IOC 
 
 45 
 
 45 
 
 20 
 
 100 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 
 
 
 
 
 
 and perpet. 
 
 
 
 
 
 
 
 banish. 2500 
 
 
 no 
 
 no 
 
 50 — 
 
 50 — 
 
 25 
 
 100 blows with 
 
 
 
 
 
 
 
 the bamboo 
 
 
 
 
 
 
 
 and perpet. 
 
 
 
 
 
 
 
 banish. 3000 
 
 
 120 
 
 120 
 
 55 
 
 80 to 120 
 If an in- 
 
 55 
 
 80 in ex- 
 
 30 
 
 Death— to be 
 
 
 Upwards 
 
 Upwards 
 
 f erior 
 
 treme 
 
 
 strangled 
 
 
 of 120 oz. 
 
 of 120 oz. 
 
 Officer. 
 
 Cases 
 
 80 in ex- 
 
 Death — to be 
 
 
 
 
 
 
 treme 
 
 beheaded 
 
 
 . . . 
 
 
 
 . . . 
 
 Cases 
 
io84 
 
 APPENDIX 
 
 Table III 
 
 Scale of pecuniary Redemption in such cases as are not legally excluded 
 from the Benefit of general Acts of Grace and Pardon, and which, 
 though not necessarily redeemable, have, by an Edict of the 8th Year of 
 the Emperor Kien-Lung, been made redeemable upon Petition. 
 
 Rank of the Offender Sentence 
 
 An Officer above the 4th Rank . ] f 
 
 " of the 4th Rank -,. , , 
 
 of the 5th or 6th Rank . . I ^^ 1 7 
 
 " of the 7th or any inferior ^ Strangulation ^ 
 
 Rank, or a Doctor of Literature . . 1 t-» ^ n ^- I 
 
 A Graduate or Licentiate | Decollation | 
 
 A Private Individual J [^ 
 
 An Officer above the 4th Rank ... 1 f 
 
 " of the 4th Rank I 
 
 of the 5th or 6th Rank . | per^etual I 
 
 of the 7th or any inferior }■ r.^^Pu!"^., H 
 
 Rank, or a Doctor of Literature. . | Banishment ^, 
 
 A Graduate or Licenciate | | 
 
 A Private Individual j [ 
 
 An Officer above the 4th Rank ... 1 f 
 
 " of the 4th Rank T^^r^^ror.,. I 
 
 " of the 5th or 6th Rank . . 1^^^^^/^ 
 
 of the 7th or any inferior [ J^T'ij^'fJ^.V < 
 
 Rank, or a Doctor of Literature . | 1?^^^' w 
 
 A Graduate or Licentiate M^^ Bamboo 
 
 A Private Individual j (^ 
 
 Pecuniary Commuta- 
 tion in Ounces of 
 Silver 
 
 [2,000 
 5,000 
 4,000 
 
 2,500 
 2,000 
 1,200 
 
 7,200 
 3,000 
 2,400 
 
 1,500 
 
 1,200 
 
 720 
 
 4,800 
 2,000 
 1,500 
 
 1,000 
 800 
 480 
 
 The principle of Table III is the reverse of that prevailing in Europe 
 during feudal times. The higher the rank of the offender, the greater 
 the pecuniary compensation required in lieu of the punishment indicated 
 by Table I. Table II prescribes a scale of pecuniary redemption by 
 redeemable punishments based on the same principle. The highest scale 
 is imposed on those well able to pay, less on those not altogether des- 
 titute, still less on the young, the old and females. Punishments with 
 the bamboo authorized to be actually inflicted are by Table IV made 
 much less than the nominal punishments indicated in Table I, thus 10 
 blows are reduced to 4, 50 to 20 and 100 to 40. The bamboo to be used 
 in inflicting the blows is required to be a straight and polished piece, 
 the branches cut away, 5 che and 5 tsun in length, in breadth i>^ f.yMn 
 by I tsun, in weight, iVa kin. These are the dimensions of the lesser 
 bamboo which in use is required to be held by the smaller end. The* 
 che is a measure of a trifle over I2>4 inches of which the tsun is a tenth 
 part. The kin exceeds the English pound by about one-third. The dimen- 
 sions given are for the lesser bamboo. The greater is of the same 
 length, 2 tsun by i^, and weighing 2 kin. The Kia or Cangue fastened 
 
PENAL CODE OF CHINA 1085 
 
 about the neck as a punishment is described as *'a square frame of dry 
 wood, 3 Che long, 2 Che 9 Tsun broad, and weighing in ordinary cases 
 25 Kin." "The greater and less criminals shall all be confined by an iron 
 chain 7 Che long and weighing 5 Kin." "The hand-cuffs shall be made 
 of dry wood i Che and 6 Tsun long by i Tsun in thickness and shall 
 be used to confine capital offenders of the male sex only." Following 
 these tables, descriptions of punishments and the systems used to inflict 
 them, comes table VI entitled "Degrees Of Relationship And Of Mourn- 
 ing, seemingly a wide departure from the subject of the preceeding 
 tables. Perhaps nothing better illustrates the peculiarities of Chinese 
 customs, principles and laws than this table which is as follows : 
 
 "The mourning for the nearest among relations in the first degree, 
 shall be worn for three years, and shall be made of the coarsest hempen 
 cloth, without being sewn at the borders. 
 
 The mourning for other relations in the first degree shall be worn for 
 three or five months, and be made of middling hempen cloth, sewn 
 at the borders. 
 
 The mourning for relations in the second degree, shall be worn for 
 nine months, and be made of coarse linen-cloth. 
 
 The mourning for relations in the third degree, shall be worn for 
 five months, and be made of middling coarse linen-cloth. 
 
 The mourning for relations in the fourth degree, shall be worn for 
 three months, and be made of middling fine linen-cloth. 
 
 The full mourning for three years, shall be worn : 
 
 By a son, for his father or mother. 
 
 By a daughter, for her father or mother, when living under the 
 parents' roof, although affianced to her intended husband, or although 
 once married, if afterwards divorced and sent home. 
 
 By a son's wife, for her husband's father or mother. 
 
 By a son and his wife, for his father's substituted first wife; for 
 the wife of his father substituted in the place of his mother, and for 
 the wife of his father, who nursed him. 
 
 By an inferior wife's son and his wife, for his natural mother, and 
 for his father's first wife. 
 
 By an adopted son and his wife, for his adopted parents. 
 
 By a grandson and his wife, for his paternal grand-parents. 
 
 By a wife, whether the first or inferior one, for her husband." 
 
 The first section of the ist book, begins: "The lowest degree of 
 punishment is a moderate correction inflicted with the lesser bamboo, in 
 order that the transgressor of the law may entertain a sense of shame 
 for his past, and receive a salutary admonition with respect to his future, 
 conduct," and follows with schedules of the degrees of offenses ; the num- 
 ber of blows to which they subject the offender nominally and the number 
 
io86 APPENDIX 
 
 actually to be inflicted; from the ist to the 5th with the lesser bamboo 
 and those ranging from 60 to 100 blows with the larger bamboo. The 
 next scale of punishments is that of temporary banishment to a distance 
 not exceeding 500 Lee, 10 Lee being equal to about 3 geographical miles. 
 Punishment with the bamboo is also inflicted together with the banish- 
 ment. Perpetual banishment with 100 blows of the bamboo to distances of 
 from 2000 to 3000 Lee is the 4th degree of punishment. The 5th and 
 highest degree is death by strangulation or decollation. Capital sen- 
 tences, except for atrocious crimes, are not to be executed until ratified 
 by the Emperor. 
 
 "Instruments of torture of the following dimensions, may be used upon 
 an investigation of a charge of robbery and homicide: 
 
 "The instruments for compressing the ankle-bones, shall consist 
 of a middle piece, 3 Che 4 Tsun long, and two side-pieces, 3 Che each 
 in length; the upper end of each piece shall be circular, and i Tsun 
 8 decimals in diameter; the lower ends shall be cut square, and, 2 Tsun 
 in thickness : At a distance of 6 Tsun from the lower ends, four hollows,. 
 or sockets, shall be excavated, i Tsun 6 decimals in diameter, and 7 
 decimals of a Tsun in depth each; one, on each side the middle-piece,, 
 and one in each of the other pieces, to correspond. The lower ends 
 being fixed and immovable, and the ankles of the criminal under ex- 
 amination being lodged between the sockets, a painful compression is 
 effected by forcibly drawing together the upper ends. 
 
 "The instrument of torture for compressing the fingers, shall consist 
 of 5 small round sticks, 7 Tsun in length, and 45/100 of a Tsun in 
 diameter each: the application of this instrument is nearly similar to 
 that of the former. 
 
 "In those cases wherein the use of torture is allowed, the offender, 
 whenever he contumaciously refuses to confess the truth, shall forthwith 
 be put to the question by torture; and it shall be lawful to repeat the 
 operation a second time, if the criminal still refuses to make a confession. 
 On the other hand, any magistrate who wantonly or arbitrarily applies 
 the question by torture, shall be tried for such offense, in the tribunal 
 of his immediate superior; and the latter shall make due inquiry into 
 the circumstances, on pain of being himself accused before the supreme 
 court of judicature at Pekin, if guilty of wilful concealment or connivance. 
 
 "Ordinary prisoners are to be confined with the small chain : the 
 Cangue, or moveable pillory is never to be used, except expressly directed 
 by the laws; nor to exceed 25 Kin in weight, unless otherwise specially 
 determined and expressed. 
 
 "When a sentence of banishment is passed against the relations, or 
 others, implicated in the guilt of an offender, the corporal punishment, 
 which is usually inflicted in different degrees, proportionate to the duration 
 of the banishment, shall be understood to be altogether remitted. 
 
PENAL CODE OF CHINA 1087 
 
 "From the 25th of the 4th moon, to the last day of the 6th moon of 
 each year (in consideration of the heat at that season), the punishment 
 of the lesser bamboo shall be remitted altogether; and that of the 
 greater bamboo shall be reduced one degree, and further mitigated, by 
 inflicting only eight for every ten blows to which the offender is 
 condemned. This indulgence shall not, however, be extended to any 
 other offenders beside those who are actually to be discharged within 
 the period above mentioned. During the same interval, a particular degree 
 of relaxation shall also be allowed to prisoners in general; and offenders 
 sentenced to wear the Cangue shall be permitted to lay it aside, provided 
 they can find securities for their subsequently fulfilling the law, by 
 resuming it at the expiration of the said period. 
 
 "Offenders convicted of thieving, robbing, wounding, or assaulting shall 
 be excluded from the benefit of the last-mentioned regulation. 
 
 "No capital execution shall take place during the period of the first or 
 sixth moons of any year; and in the event of any conviction of a 
 crime in a court of justice during the said intervals, for which the law 
 directs immediate execution, the criminal shall, nevertheless, be respited 
 until the first day of the moon next following. 
 
 "The mitigation of the law concerning the infliction of corporal punish- 
 ment during the summer months, shall take effect without any particular 
 reference to the Emperor." 
 
 In Section II offenses of a treasonable nature are defined, and include, 
 rebellion, disloyalty, desertion (which includes the murder of father, 
 mother, uncle, aunt, grandfather, or grandmother), parricide massacre 
 which is the murder of 3 or more persons in one family, sacrilege. "Im- 
 piety is discoverable in every instance of disrespect or negligence toward 
 those to whom we owe our being, and by whom we have been educated and 
 protected. It is likewise committed by those who inform against or 
 insult such near relations while living, or who refuse to mourn for 
 their loss, and to show respect to their memory when dead." "Discord 
 in families is the breach of the legal or natural ties which are founded 
 on connections to whom, when deceased, the ceremony of mourning is 
 legally due." Insubordination and incest, are also classed as treasonable. 
 
 "The crimes here arranged and distributed under ten heads, being dis- 
 tinguished from others by their enormity, are always punished with 
 the utmost rigor of the law ; and, when the offense is capital, it is 
 excepted from the benefit of any act of general pardon ; being likewise, 
 in each case, a direct violation of the ties by which society is maintained, 
 they are expressly enumerated in the introductory part of this code, that 
 the people may learn to dread, and to avoid the same." 
 
 Section III designates the privileged classes. The first includes the 
 imperial household and the Emperor's relations as well as those of his 
 mother, grandmother and wife, within the first, second and third degrees. 
 
io88 APPENDIX 
 
 The second class includes ancient and distinguished servants of the 
 crown. The third those who have performed illustrious service, especially 
 in war. The fourth those eminent for wisdom and virtue, the fifth, 
 men distinguished for great ability, the sixth those especially distinguished 
 for zeal in the public service : 
 
 "This privilege is to be enjoyed by all those who possess the first 
 rank in the empire ; all those of the second, who are at the same time 
 •employed in any official capacity whatever; and all those of the third, 
 whose office confers any civil or military command." 
 
 "The Emperor esteems and protects those who are distinguished for 
 their wisdom and eminent services, even to the second and third 
 generation." 
 
 Persons included within these privileged classes, cannot be tried for 
 ofTenses other than those of a treasonable nature, and by the express 
 command of the Emperor. A similar privilege is extended to the father, 
 mother, grandmother, wife, son and grandson, of persons belonging to 
 either of these classes, and the final decision of all such causes is made 
 by the Emperor. Offenses committed by officers at court or in the 
 provinces, are required to be reported to the Emperor and a trial can only 
 he had by his command. An inferior officer may report injurious treat- 
 ment by his superior, as well as a superior officer make complaint of his 
 •subordinate. Tartars enrolled as banner-men are to be punished with 
 the whip instead of the bamboo, and when guilty of offenses punishable 
 with banishment, are to be confined with the cangue for a number of 
 ■days proportioned to the prescribed banishment, for i year 20 days, 
 .2 years 30 days, and in lieu of perpetual banishment from 45 to 90 
 days. Very elaborate provisions are made with reference to mitigations 
 of punishment, in consideration of the relation of different parties to the 
 offense, and of their conduct with reference to confessions, voluntary 
 surrender and aid in procuring the arrest of participants in crime. There 
 is a large class of offenses, punishable as crimes in which there is no 
 intentional wrong doing, founded on imputable misconduct and negligence. 
 The punishment in these cases is mitigated, however. Judicial officers 
 are liable to punishment for unjust judgments, either of acquittal or 
 conviction, and the clerk of the court as well as the judge must suffer, 
 l)ut with a reduction of three degrees where the sentence has been 
 executed, and four where it has not been. A reduction of sentences by 
 a degree means dropping down to the next lower one in the scale, as 
 from 50 blows to 40, two years banishment to a year and a half. As 
 a part of their punishment for dereliction all public officials are liable to 
 degradation or dismissal from office. 
 
 "When any offender under sentence of death for an offense not ex- 
 cluded from the contingent benefit of an act of grace, shall have parents 
 or grandparents who are sick, infirm, or aged above seventy years, and 
 
PENAL CODE OF CHINA 1089 
 
 who have no other male child or grandchild above the age of sixteen 
 to support them, beside such capitally convicted offender, this circum- 
 stance, after having been investigated and ascertained by the magistrate 
 of the district, shall be submitted to the consideration and decision of 
 His Imperial Majesty." 
 
 Astronomers convicted of offenses punishable with banishment suffer 
 100 blows and may redeem themselves from further punishment by the 
 payment of a fine. There is also a mitigation of punishments in favor 
 of artisans, musicians and women, for minor offenses. Persons under 
 fifteen or over seventy, except for heinous offenses, are allowed to 
 redeem themselves. Expedition in the dispatch of public business is 
 strictly enjoined and punishment is meted out for failure to execute orders^ 
 transmit or deliver dispatches or carry out any imperial orders. ''Five 
 days shall be allowed to discharge business of small importance, ten days 
 for business of ordinary importance and twenty days for business of 
 high importance." A distinction is made between principles and accessaries 
 differing somewhat from that observed in Europe and America. 
 
 "As for instance ; if a man engages a stranger to strike his elder 
 brother — the younger brother shall be punished with ninety blows, and 
 two years and a half banishment, for the offense of striking his elder; 
 but the stranger shall be only punished with twenty blows, as in common 
 cases of an assault. Also, if a younger relation introduces a stranger 
 to steal to the amount of ten leang or ounces of silver of the family 
 property, he shall only be punished as wasting, or disposing of without 
 leave, the family property to that extent, whereas the stranger shall be 
 punished as in common cases of theft." (Sec, 30). 
 
 "All relations connected in the first and second degree and living under 
 the same roof, maternal grand-parents and their grandchildren, fathers 
 and mothers-in-law, sons and daughters-in-law, grandchildren's wives,, 
 husbands' brothers and brothers' wives, when mutually assisting each 
 other, and concealing the offenses, one of another, and moreover, slaves 
 and hired servants assisting their masters and concealing their offenses, 
 shall not, in any such cases, be punishable for so doing." 
 
 "In like manner, though they should inform their relations of the 
 measures adopted for their apprehension, and enable them to conceal 
 themselves, and finally to effect their escape, they shall still be held 
 innocent." 
 
 "When relations in the third and fourth degrees assist and protect 
 each other from punishment in the manner here described, they shall 
 for such conduct be liable to punishment, but only in a proportion of 
 three degrees less than would have been inflicted on strangers under 
 the same circumstances." (Sec. 32). 
 
 Degrees of relationship are counted quite differently from the rules 
 either of the Roman or common law. 
 
1090 APPENDIX 
 
 "Whatever is declared in the laws to concern relations in the first 
 degree, grand-parents or grandchildren, shall likewise be understood to 
 extend equally to great-grand-parents, and great-great-grand-parents, 
 great-grand-children, and great-great-grand-children, except in cases of 
 constructive crimes, when the law shall be taken literally." 
 
 "Also, the father's principal wife, the father's wife substituted in the 
 place of the principal wife after her death, the father's wife substituted 
 in the place of the natural mother upon her death, and the adopted mother, 
 shall all hold equal rank with the natural mother, and be understood 
 to be referred to, in all laws in which the mother of the part^ con- 
 cerned is only stated generally, except in the case of such mother having 
 been divorced, or in the case of her killing, or attempting to kill, such 
 son-in-law." 
 
 "Also, except in cases of constructive offenses, whatever the law states 
 relative to the sons, shall be applicable to the daughters also." (Sec. 38). 
 
 "A day shall be considered to have elapsed when the hundred divisions 
 are completed — (at present, according to the Imperial Almanac, the day 
 consists of ninety-six divisions). A day's work or labour shall, however, 
 be computed only from the rising to the setting of the sun." 
 
 "A legal year shall consist of 360 days complete, but a man's age 
 shall be computed to the number of years of the cycle elapsed since his 
 name and birth were recorded in the public register." 
 
 "When the law speaks of several persons, three at least are to be 
 understood; but when simply stating the circumstances of an agreement 
 or combination, any number not less than two may be implied." (Sec. 41). 
 
 The imperfection of the code and the difficulties attending the decision 
 of cases not clearly provided for, are recognized in several places. 
 Section XLIV provides : 
 
 "From the impracticability of providing for every possible contingency, 
 there may be cases to which no laws or statutes are precisely applicable; 
 such cases may then be determined, by an accurate comparison with 
 others which are already provided for, and which approach most nearly 
 to those under investigation, in order to ascertain afterwards to what 
 extent an aggravation or mitigation of the punishment would be equitable. 
 
 Provisional sentence conformable thereto shall be laid before the 
 superior magistrates, and after receiving their approbation, be submitted 
 to the Emperor's final decision. Any erroneous judgment which may be 
 pronounced in consequence of adopting a more summary mode of pro- 
 ceeding, in cases of a doubtful nature, shall be punished as a wilful 
 deviation from justice." 
 
 "All the appointments and removals of officers, whether civil or military, 
 shall depend solely upon the authority of the Emperor. If any great 
 officer of state presumes to confer any appointment upon his own authority. 
 
PENAL CODE OF CHINA 1091 
 
 he shall suffer death by being beheaded, after remaining in prison the 
 usual time." (Sec. 48.) 
 
 "The official messengers who are employed in the several districts 
 of the empire under the jurisdiction of the cities of the first, second, 
 and third order, for the transmission of dispatches relative to ordinary 
 public business, or to the punishment of public transgressors, shall perform 
 the services upon which they are respectively employed, within the 
 periods which, with a due regard to the distance, and other circumstances, 
 are in each case by law established. For one day's delay beyond the 
 legal period, they shall be liable to a punishment of 10 blows, which shall be 
 increased one degree, until it amounts to 40 blows, for every additional 
 day's delay. If the governing magistrates in any of the aforementioned 
 districts and divisions of command, do not, when the administration of 
 public affairs requires, send immediately the necessary orders for in- 
 structions to the officers subject to their authority, such neglect shall be 
 punished with 100 blows." 
 
 'The attention due to the repairing and inspecting of roads and 
 bridges ; to accidents and affrays ; to the seizing of criminals ; confisca- 
 tion of property, and to any other such specific objects, being noticed 
 and enforced elsewhere in this code, the neglect thereof is not to be 
 punished as a breach of this general article." (Sec. 51). 
 
 As official appointments are in theory at least, based on the qualifications 
 of candidates, as ascertained from the regular literary examinations, 
 it is regarded as of great importance, that the examiners be fair and 
 make true reports. 
 
 "Whoever confers degrees of honour on persons who are not worthy, 
 or who are under any disqualifications; and whoever, on the contrary, 
 refuses at the proper time to confer such degrees upon those who are 
 entitled to them by their merit, as well as duly qualified, shall be 
 punished with 80 blows for a single instance of such offense, and one 
 degree more severely, as far as 100 blows, for every two additional 
 instances which may be proved upon investigation. If the individual so 
 improperly graduated is aware of his being ineligible, he shall be punished 
 as a participator in the offense, but otherwise shall be held innocent." 
 
 "If the presiding examiner of the merits of the candidates designedly 
 makes a false report in any instance, by elevating or depressing their 
 respective claims, the punishment of such examiner shall be two degrees 
 less than that of the officer who confers the degrees improperly. If 
 the report is erroneous, but not designedly false, the punishment shall 
 be less by three degrees, but liable in all cases to be increased whenever 
 there is conviction of bribery and corruption." (Sec. 52.) 
 
 "The laws and statutes of the empire have been framed with delibera- 
 tion, are sanctioned with appropriate penalties against transgressors, 
 and are published to the world for perpetual observance." 
 
1092 APPENDIX 
 
 "All the officers and others in the employ of government ought to 
 study diligently, and make themselves perfect in the knowledge of these 
 laws, so as to be able to explain clearly their meaning and intent,, 
 and to superintend and ensure their execution." 
 
 "At the close of every year, the officers and other persons employed' 
 by government, in every one of the exterior and interior departments, 
 shall undergo examination on this subject before their respective su- 
 periors, and if they are found in any respect incompetent to explain the 
 nature, or to comprehend the several objects, of the laws, they shall 
 forfeit one month's salary when holding official, and receive 40 blows 
 when holding any of the inferior, situations." 
 
 "All those private individuals, whether husbandmen, or artificers or 
 whatever else may be their calling or profession, who are found capable 
 of explaining the nature, and comprehending the objects, of the laws, 
 shall receive pardon in all cases of offenses resulting purely from 
 accident, or imputable to them only from the guilt of others, provided it 
 be the first offense, and not implicated with any act of treason or 
 rebellion." 
 
 "Whosoever, in the employ of government, fraudulently perverts or mis- 
 construes, or presumptuously changes, abrogates or confounds the law 
 upon any case, so as to produce disturbance and insurrection in the 
 country, shall suffer death by being beheaded, after the usual period of 
 imprisonment." (Sec. 61.) 
 
 "Whenever an Imperial Edict is issued on any subject, whoever wilfully 
 omits the execution of any thing that is commanded therein, shall be 
 punished with 100 blows. In the case of the edict of the Imperial prince 
 elect, the punishment shall be the same. A failure in any such respect, 
 from neglect or inadvertence, shall be punished three degrees less severely." 
 
 "Moreover, any one who delays or postpones the execution of an 
 Imperial edict for one day, shall be punished with 50 blows, and one 
 degree more severely as far as 100 blows for each additional day of 
 delay." (Sec. 62.) 
 
 Book II of the Second Division of which Section LXI is the first, 
 relates to the conduct of magistrates and enjoins the performance of 
 various official duties. 
 
 "When a family has omitted to make any entry whatever in the 
 public register, the head or master thereof, if possessing any lands 
 chargeable with contributions to the revenue, shall be punished with 
 100 blows; but if he possess no such property, with 80 blows only, and 
 the family shall in the former case be registered as accountable for 
 future public service, according to the amount of its taxable property, 
 and in the latter, according to the number of male individuals of full 
 age of which it consists." 
 
 "When any head or master of a family, has among his household 
 
PENAL CODE OF CHINA 1093 
 
 strangers who constitute, in fact, a distinct family, but omits to make 
 a corresponding entry in the public register, or registers them as members 
 of his own family, he shall be punished with 100 blows, if any such 
 stranger possesses taxable property, and with 80 blows if he should 
 not possess any; and in all cases, the register shall be duly corrected, 
 by the insertion of a description of such strangers as a distinct family." 
 (Sec. 75.) 
 
 "All persons whatsoever shall be registered according to their accus- 
 tomed professions or vocations, whether civil or military, whether post- 
 men, artisans, physicians, astrologers, laborers, musicians, or of any 
 other denomination whatever; wherever a military employment is rep- 
 resented as a civil one, or an artisan endeavours to pass himself as 
 a mere laborer, or when any other device is employed to lessen the 
 individual's liability to the public service, such individual shall be pun- 
 ished with 80 blows, and tfhe magistrate who negligently consents 
 to such omission, irregularity, or confusion in the entries on the public 
 register, shall be equally punishable." 
 
 "Whoever falsely represents himself to belong to any military estab- 
 lishment in garrison, or in the field, and thereby evades all public 
 service whatever, shall receive 100 blows, and be sent into the ulterior and 
 perpetual military banishment," (Sec. 76.) 
 
 "No religious houses of the sects of Foe and Tao-se, except those 
 which have been heretofore lawfully constituted and established, shall 
 be privately maintained, appropriated, or endowed, whether upon a new, 
 or in addition to an old foundation, or in any other manner whatsoever." 
 (Sec. -]-].) 
 
 "Whoever appoints his heir and representative unlawfully, shall be 
 punished with 80 blows. When the first wife has completed her fiftieth 
 year, and has no children living, it is allowed to appoint the eldest 
 son by the other wives to the inheritance; but if any other than the 
 eldest of such sons is so appointed, it shall be deemed a breach af 
 this law." 
 
 "If a person, not having sons himself, educates and adopts the son 
 of a kinsman, having other sons, but afterwards dismisses such adopted 
 son, such person shall be punished with 100 blows, and the son shall 
 be sent back to, and supported, as before, by the adopting parents." 
 
 "Nevertheless if the adopting parent shall have subsequently had 
 other sons, and the natural parents, having no other, are desirous of 
 receiving their son back again, they shall be at liberty so to do." 
 
 "Whoever asks for, and receives into his house as his adopted son, 
 a person of a different family name, is guilty of confounding family 
 distinctions, and shall therefore be punished with 60 blows; the son so 
 adopted shall, in such cases, always be returned to his family. In like 
 manner, whoever gives away his son to be adopted into a family of a 
 
I094 APPENDIX 
 
 different name, shall suffer the punishment decreed by this law, and 
 receive such son back again. Nevertheless, it shall be lawful to adopt 
 a foundling under three years of age, and to give the child the name 
 of the family into which it is adopted; but such adopted child shall 
 not be entitled to the inheritance upon failure of the children by blood." 
 "If the relative appointed to the inheritance, on failure of children, 
 is not the eldest in succession, it shall be deemed a breach of this law; 
 the relative so appointed shall be sent back to his place in his own 
 family, and the lawful heir appointed in his stead." 
 
 "Whoever brings up in his family, as a slave, the male or female 
 child of a freeman, shall be punished with lOO blows, and the child 
 shall regain its freedom." (Sec. 78.) 
 
 "In all districts of the empire, 100 families shall form a division, and 
 shall consult together, in order to provide a head and ten assessors, 
 who are to attend successively, in order to assist in the collection of the 
 taxes, and duly to ascertain the performance of all other public duties 
 and services." 
 
 If there are any other persons who, falsely assuming authority under 
 the characters of deputies, assistants, and the like, create disturbances 
 and harass the people, they shall be punished with 100 blows and 
 Ijanished." 
 
 "The elders, who are to be appointed to these offices, shall be chosen 
 among the most respectable persons of maturer age who belong to the 
 district, and no person shall be eligible to, or accept, the said offices, 
 who has ever held any civil or military employments, or who has 
 ever been convicted of any crime. Whoever accepts the same, in defiance 
 of this law, shall be punished with 60 blows, and dismissed; the officer 
 of government, who sanctions such undue appointment, shall be punished 
 with 40 blows, at the least, and eventually suffer such further punishment 
 as he may be liable to, in consequence of being guilty of receiving a 
 bribe for an unlawful purpose." (Sec. 83.) 
 
 "Sons or grandsons who form to themselves a separate establishment 
 for their parents and grand-parents, and also make a division of the 
 family property, shall, provided such parents and grand-parents personally 
 prosecute, be punished, on conviction, with 100 blows." 
 
 "Also, the sons of the same parents, who shall form to themselves 
 separate etsablishments, and divide their respective proportions of the 
 inheritance, previous to the expiration of the lawful period of mourning, 
 shall be punished with 80 blows, provided they are convicted upon an 
 information laid by an elder relation in the first degree, and provided 
 that they had not been expressly directed to do so in the last will of 
 their parent deceased." (Sec. 87.) 
 
 "Any younger and inferior member of a family, living with the others 
 under the same roof, who applies to his own use, or otherwise disposes 
 
PENAL CODE OF CHINA 1095 
 
 of, the joint family-property without permission, shall be punished with 
 20 blows, if the value amounts to 10 ounces of silver; and one degree 
 more severely as far as 100 blows, for every additional 10 ounces value." 
 
 "An unjust or partial division of the patrimony between the elder 
 and younger branches of a family, upon their separation, shall likewise be 
 punished agreeably to the tenor of this law." (Sec. 88.) 
 
 "All poor destitute widowers and widows, the fatherless and childless, 
 the helpless and the inftrm, shall receive sufficient maintenance and pro- 
 tection from the magistrates of their native city or district, whenever 
 they have neither relations nor connexions upon whom they can depend 
 for support. Any magistrate refusing such maintenance and protection, 
 shall be punished with 60 blows." 
 
 "Also, when any such persons are maintained and protected by govern- 
 ment, the superintending magistrate and his subordinates, if failing to 
 afford them the legal allowance of food and raiment, shall be punished 
 in proportion to the amount of the deficiency, according to the law 
 against an embezzlement of government stores." (Sec. 89.) 
 
 There are numerous regulations designed to enforce the collection of 
 taxes and prevent frauds on the revenue. Provision is made by Section 
 XCI for an abatement of taxes in districts suffering from a temporary 
 calamity as excessive rain, overflows, drought, unseasonable frosts, locust? 
 and the like. Public officers are required to examine and report any 
 such cases. The system of mortgaging land is somewhat peculiar and 
 seems to be designed to protect the revenue. 
 
 "Whoever takes lands or tenements by way of mortgage, without enter- 
 ing into a regular contract, duly authenticated and assessed with the legal 
 duty by the proper magistrate, shall receive 50 blows, and forfeit to 
 government half the consideration money of the mortgage. If the 
 mortgagor does not transfer to the mortgagee unreservedly the whole 
 produce of the land upon which the taxes are charged and made payable 
 to government, he shall be punished in proportion to the extent of the 
 property, in the following manner: if from one to five men, with 40 
 blows, and one degree more severely for each five additional meu, until 
 the punishment amounts to 100 blows ; the land so illegally mortgaged 
 shall be forfeited to government." 
 
 "If the proprietor of lands and tenements already mortgaged, attempts 
 to raise money thereon by a second mortgage, the amount obtained upon 
 such false pretences shall be ascertained, and the offender punished ac- 
 cordingly, as in the case of an ordinary theft to the same extent, except 
 that he shall not be liable to be branded." 
 
 "The pecuniary consideration received by the fraudulent mortgagor 
 shall be restored always to the mortgagee, unless such mortgagee is him- 
 self privy to the unlawfulness of the transaction, in which case it shall 
 be forfeited to government." 
 
1096 APPENDIX 
 
 "The said mortgagee and the negotiator of the bargain, when either of 
 them is acquainted with the unlawfulness of the transaction, shall more- 
 over receive the same punishment as the mortgagor. In all such cases, 
 the first and lawful mortgagee shall remain in possession." 
 
 "If, after the period, specified in the deed by which any lands or 
 tenements are professed to be mortgaged or pledged by the proprietor, 
 is expired, the said proprietor offers to redeem his property by the 
 payment back of the original consideration upon which he had parted 
 with it, it shall not be allowed the mortgage to refuse to comply; 
 any instance of such refusal shall subject him to the punishment of 40 
 blows, and to the forfeiture of all the produce of the land which he 
 may have reaped after the expiration of such period. Nevertheless, 
 this law shall only have effect when the proprietor is really able at 
 the expiration of the prescribed period to redeem his lands, and not 
 otherwise." (Sec. 95.) 
 
 The duty of cultivating the land is strictly unjoined. 
 
 "In every district of the empire, when the lands which have been 
 entered on the public registers as liable to the land-tax, and as sub- 
 jecting the proprietors to the demands of personal service, are, without 
 any cause, such as inundation, drought, or other calamity, neglected 
 and omitted to be duly cultivated ; as, for instance, if the established 
 mulberry, hemp, and other similar plantations are not duly kept up, 
 the head inhabitant of the district shall be held responsible, and punished 
 according to the relative extent of the uncultivated to that of the cul- 
 tivated portion of the registered lands in his district. If the uncultivated 
 portion is one-tenth of the whole, he shall be punished with 20 blows, 
 and one degree more severely, as far as 80 blows, for each additional 
 tenth uncultivated. The presiding magistrate of the city of the third 
 order, to which the district is subjected, shall likewise be punishable, 
 but less severely by two degrees in each case than the head inhabitant. 
 The assessors of the chief magistrate shall suffer punishment as accessaries 
 to his offense." 
 
 "The individual proprietor also, who suffers his land to remain un- 
 cultivated, or who neglects his mulberry, hemp, or other plantations, 
 shall be punished according to the proportion which the neglected part 
 bears to the whole of his registered property, if it amounts to one-fifth, 
 with 20 blows, and one degree more severely for every additional fifth 
 left uncultivated." 
 
 "His lands shall moreover be assessed with the land-tax in proportion 
 to the amount of the produce they are judged capable of yielding, and 
 the contribution shall be levied on the proprietor accordingly." (Sec. 97.) 
 
 Trespasses on land and taking the fruit belonging to others is punished 
 with the bamboo. 
 
 "When a marriage is intended to be contracted, it shall be, in the 
 
PENAL CODE OF CHINA 1097 
 
 first instance, reciprocally explained to, and clearly understood by, the 
 families interested, whether the parties who design to marry are or are 
 not diseased, infirm, aged, or under age; and whether they are the 
 children of their parents by blood, or only by adoption; if either of the 
 contracting families object, the proceedings shall be carried no further; 
 if they still approve, they shall then in conjunction with the negotiators 
 of the marriage, if such there be, draw up the marriage-articles, and 
 determine the amount of the marriage presents." 
 
 "If, after the woman is thus regularly affianced by the recognition of 
 the marriage-articles, or by a personal interview and agreement between 
 the families, the family of the intended bride should repent having 
 entered into the contract, and refuse to execute it, the person amongst 
 them who had authority to give her away shall be punished with 50 
 blows, and the marriage completed agreeably to the original contract. 
 Although the marriage-articles should not have been drawn up in writing, 
 the acceptance of the marriage-presents shall be sufficient evidence of 
 the agreement between the parties." 
 
 "If after the female is affianced, but previous to the completion of 
 the marriage, her family promises her in marriage to another, the 
 person having authority to give her away shall be punished with 70 
 blows ; if such promise is made after the first marriage is actually 
 completed (that is to say, the bride is personally presented to and 
 received by the bridegroom), the punishment shall be increased to 80 
 blows." 
 
 "If the family of the intended bridegroom after having agreed as 
 aforesaid, repents of the contract, and makes marriage-presents to 
 another woman, the same punishment shall be inflicted, as in the cases 
 already mentioned. The bridegroom shall be obliged to receive his 
 originally intended bride; and the female, to whom he is secondly 
 affianced, shall retain the marriage-presents made to her, and be at the 
 same time at liberty to marry another person." (Sec. loi.) 
 
 "Whoever lends any one of his wives, to be hired as a temporary 
 wife, shall be punished with 80 blows, — whoever lends his daughter *n. 
 like manner, shall be punished with 60 blows; the wife or daughter 
 in such cases, shall not be held responsible." 
 
 "Whoever, falsely representing any of his wives as his sister, gives 
 her away in marriage, shall receive 100 blows, and the wife consenting 
 thereto, shall be punished with 80 blows." 
 
 "Those who knowingly receive in marriage the wives, or hire for a 
 limited time the wives or daughters of others, shall participate equally 
 in the aforesaid punishment, and the parties thus unlawfully connected, 
 shall be separated; the daughter shall be returned to her parents, and 
 the wife to the family to which she originally belonged; the pecuniary 
 consideration in each case shall be forfeited to government. Those 
 
logS APPENDIX 
 
 who ignorantly receive such persons in marriage, contrary to the laws, 
 shall be excused, and recover the amount of the marriage-presents." 
 (Sec. I02.) 
 
 "Whoever degrades his first or principal wife to the condition of an 
 inferior wife or concubine, shall be punished with loo blows. Whoever, 
 during the life-time, of his first wife, raises an inferior wife to the 
 rank and condition of a first wife, shall be punished with 90 blows, and 
 in both cases, each of the several wives shall be replaced in the rank 
 to which she was originally entitled upon her marriage." 
 
 "Whoever, having a first wife living, enters into marriage with another 
 female as a first wife, shall likewise be punished with 90 blows; and 
 the marriage being considered null and void, the parties shall be separated, 
 and the woman returned to her parents." (Sec. 103.) 
 
 "If any man or woman enters into an equal marriage during the 
 legal period of mourning for a deceased parent, or any widow enters 
 into a second and equal marriage within the legal period of mourning 
 for her deceased husband, the offending party shall be punished with 
 100 blows." 
 
 "If it is not an equal match, that is to say, if a man takes an inferior 
 wife from a subordinate rank or a woman connects herself in marriage 
 as one of the inferior wives of her husband, the punishment attending 
 a breach of this law shall be less by two degrees." (Sec. 105.) 
 
 "Whoever marries a wife or a husband upon equal terms of espousal 
 having a father, mother, grand-father or grand-mother at the same 
 time under confinement in prison for a capital offense, shall be punished 
 with 80 blows,' — whoever at such time receives in marriage, or becomes 
 by marriage, a subordinate wife, shall suffer punishment less by two 
 degrees." 
 
 "Nevertheless, if any ruch person enters into the marriage state at 
 such period, by the express command of his or her parent or grand- 
 parent in prison, no punishment shall ensue, provided the usual feast 
 and entertainment is omitted; otherwise a punishment of 80 blows shall 
 be inflicted." (Sec. 106.) 
 
 "Whenever any persons having the same family-name intermarry, 
 the parties and the contractor of the marriage shall each receive 60 
 blows, and the marriage being null and void, the man and woman 
 shall be separated, and the marriage-presents forfeited to government." 
 (Sec. 107.) 
 
 "In general all marriages between persons who through another marriage 
 are already related to each other in any of the four degrees, and all 
 marriages with sisters by the same mother, though by a different father, 
 or with the daughters of a wife's former husband, shall be considered 
 as incestuous, and punished according to the law against a criminal 
 intercourse with such relations." 
 
PENAL CODE OF CHINA . 1099 
 
 "A man shall not marry his father's or mother's sister-in-law, his 
 father's or mother's aunt's daughter, his son-in-law's or daughter-in-law's 
 sister, or his grandson's wife's sister, on pain of receiving 100 blows 
 for such offense." 
 
 "Whoever marries his mother's brothers or mother's sister's daughter, 
 shari receive 80 blows, and in these as well as the foregoing cases the 
 marriage shall be annulled and the marriage-present forfeited." (Sec. 108.) 
 
 "Whoever marries a female relation beyond the fourth degree, or 
 the widow of a male relation equally remote, shall be punished with 
 100 blows. Whoever marries the widow of a relation in the fourth 
 degree, or of a sister's son, shall be punished with 60 blows, and one 
 year's banishment. Whoever marries the widow of any nearer relation, 
 shall be punished according to the law against incestuous connexions 
 with such persons. Nevertheless, when the connexion had been broken 
 by a divorce, or an intervening marriage with a stranger, the offence 
 shall in general be only punished with 80 blows." 
 
 "Whoever receives in marriage any of his father's or grandfather's 
 former wives, or his father's sisters, shall, whether they have been 
 divorced or re-married, in all cases suffer death, by being beheaded. 
 Whoever marries his brother's widow, shall be strangled.'^ 
 
 "The foregoing cases, in general apply to first wives only, and the 
 punishment of marrying the inferior wives of such relatives as aforesaid, 
 shall be less in each case by two degrees." 
 
 "Whoever marries any female relation in the fourth, or any nearer 
 degree, shall be punished according to the law concerning incest, and all 
 such incestuous marriages shall be null and void." (Sec. 109.) 
 
 Officers of government marrying into families subject to their juris- 
 diction or having an interest in legal proceedings before them, are subject 
 to 80 blows. For forcibly abducting and marrying a woman death by 
 strangulation is the penalty. An officer or clerk of government who 
 marries a female musician or comedian is punishable with 60 blows and 
 the marriage declared void. Priests of Foe or Tao-sse, who marry, 
 are punishable with 80 blows and expulsion from the order. A master 
 who obtains in marriage for his slave the daughter of a free man, is 
 punishable with 80 blows and the members of her family, who knowingly 
 consent, are subject to like punishment. 
 
 "If a husband repudiates his first wife, without her having broken 
 the matrimonial connexion by the crime of adultery, or otherwise; and 
 without her having furnished him with any of the seven justifying 
 causes of divorce, he shall in every such case be punishable with 80 
 blows. Moreover, although one of the seven justifying causes of divorce 
 should be chargeable upon the wife, namely, (i) barrenness; (2) las- 
 civiousness; (3) disregard of her husband's parents; (4) talkativeness; 
 (5) thievish propensities; (6) envious and suspicious temper; and, lastly. 
 
iioo . APPENDIX 
 
 (7) inveterate infirmity; yet, if any of the three reasons against a 
 divorce should exist, namely, (i) the wife's having mourned three years 
 for her husband's parents; (2) the family's having become rich after 
 having been poor previous to, and at the time of, marriage; and, (3) 
 the wife's having no parents living to receive her back again; in these 
 cases, none of the seven aforementioned causes will justify a divorce, 
 and the husband who puts away his wife upon such grounds, shall suffer 
 punishment two degrees less than that last stated, and be obliged to 
 receive her again." 
 
 "If the wife shall have broken the matrimonial connexion by an 
 act of adultery, or by any other act, which by law not only authorizes 
 but requires that the parties should be separated, the husband shall 
 receive a punishment of 80 blows, if he retain her." 
 
 "When the husband and wife do not agree, and both parties are 
 desirous of separation, the law limiting the right of divorce shall not 
 be enforced to prevent it." 
 
 "If, upon the husband's refusing to consent to a divorce, the wife 
 quits her home and absconds, she shall be punished with 100 blows, 
 and her husband shall be allowed to sell her in marriage; if, during 
 such absence from her home, she contracts marriage with another person, 
 she shall suffer death, by being strangled, after the usual period of 
 confinement." (Sec. 115.) 
 
 There are various other provisions relating to marriage, and divorce 
 and denouncing penalties for misconduct of the parties. Book IV treats 
 of public property and coinage, the collection of revenue and imposes 
 penalties for misconduct in reference thereto. There are numerous pro- 
 visions enjoining, on all officers handling public funds, watchfulness of 
 each other and the duty to report any misconduct. Book V. regulates duties 
 and customs. Its first provision is as follows : 
 
 "Whoever, not having a license, engages in a clandestine traffic in salt, 
 that is to say, possesses any quantity however small of this article for 
 sale, shall be punished with 100 blows, and banished for three years." 
 (Sec. 141.) 
 
 An important part of the revenues of the state is derived from the 
 salt monopoly maintained by the government. Various other articles of 
 merchandise are subject to taxation. The law against usury like all other 
 laws, is enforced with the bamboo ; the limit allowed as interest is rather 
 high being 3% per month, but arrears of interest cannot exceed the 
 principal. The payment of the debt and interest is also enforced with 
 the bamboo, and a delay of three months in the payment of a debt 
 of 5 leang or more is punished with 10 blows and 10 more for each 
 additional delay of a month up to 40 blows. The failure to pay larger 
 debts may subject him to more blows. A creditor who attempts to 
 collect his debt by forcibly seizing the property of the debtor is liable 
 
PENAL CODE OF CHINA iioi 
 
 to 80 blows, if he accepts the wife or children of his debtor in pledge 
 for payment, he shall be punished with 100 blows, if the creditor takes 
 the wife or children and carries them oflf by force, he is subject to an 
 increase of two degrees of punishment, and if guilty of criminal conduct 
 toward the wife must suffer death by strangulation. Trustees having 
 charge' of the goods or live stock of another, who misappropriate or 
 waste the property are liable to the bamboo, and frauds are similarly 
 punished. Book VII treats of sales and markets, and provides for appoint- 
 ments of commercial agents in every city, public market and village 
 district, who are required to keep registers of the ships and merchants 
 who arrive and the quantity of their goods. Section 154 contains a 
 provision which might give ample employment to the officials, if put in 
 force in America. 
 
 "When the parties to the purchase and sale of goods do not amicably 
 agree respecting the terms, if one of them monopolizing, or otherwise 
 using undue influence in the market, obliges the other to allow him an 
 exorbitant profit; or if artful speculators in trade, by entering into a 
 private understanding with the commercial agent, and by employing other 
 unwarrantable contrivances, raise the price of their own goods, although 
 of low value, and depress the prices of those of others, although of high 
 value, in all such cases the offending parties shall be severally punished 
 with 80 blows each for their misconduct." 
 
 "When a trader, observing the nature of the commercial business 
 carrying on by his neighbor, contrives to suit or manage the disposal 
 or appreciation of his own goods in such a manner, as to derange, and 
 excite distrust against the proceedings of the other, and thereby draws 
 unfairly a greater proportion of profit to himself than usual, he shall 
 be punished with 40 blows." 
 
 "The exorbitant profit derived from any one of the foregoing unlawful 
 practices, shall, as far as it exceeds a fair proportion, be esteemed a 
 theft, and the offender punished accordingly, whenever the amount renders 
 the punishment provided by the law against theft more severe than that 
 hereby established and provided. The offender shall not however be 
 branded as in the ordinary cases of theft." (Sec. 154.) 
 
 The use of false weights or measures is punishable with 60 blows and 
 public officers conniving at the use of false weights are punishable with 
 from 70 to 100 blows. 
 
 "If a private individual manufactures any article for sale, which is not 
 as strong, durable, and genuine, as it is professed to be, or if he pre- 
 pares and sells any silks or other stuffs of a thinner or slighter texture 
 and quality, narrower, or shorter, than the established or customary 
 standard, he shall be punished with 50 blows. (Sec. 156.) 
 
 Book I of the 4th division makes provision for the observance of the 
 sacred rites and religious duties and denounces severe punishment for 
 
mo2 APPENDIX 
 
 failure to observe the ceremonies which are so important a part of 
 Chinese customs. For the details of the various observances, references 
 are made to the Book of Rites. The health of the emperor is cared for 
 by subjecting his physician to from 60 to 100 blows for any mistakes 
 in his medicine, and his cook to like punishment for improper ingredients 
 in his food or failing to test the dishes served by tasting. 
 
 "If either the superintending or dispensing officer, or the cook, in- 
 troduces into His Majesty's kitchen any unusual drug, or article of food» 
 he shall be punished with 100 blows, and compelled to swallow the same." 
 (Sec. 163.) 
 
 "If a son on receiving information of the death of his father or 
 mother, or a wife, receiving information of the death of her husband, 
 suppress such intelligence, and omits to go into lawful mourning for the 
 deceased, such neglect shall be punished with 60 blows, and one year's 
 banishment. If a son or wife enters into mourning in a lawful manner, 
 but previous to the expiration of the term, discards the mourning habit, 
 and forgetful of the loss sustained, plays upon musical instruments and 
 partakes of festivities, the punishment shall amount for such offense to 
 80 blows." 
 
 "Whoever on receiving information of the death of any other relation 
 in the first degree than the above-mentioned, suppresses the notice of it, 
 and omits to mourn, shall be punished with 80 blows; if previous to the 
 expiration of the legal period of mourning for such relation, any person 
 casts away the mourning habit, and resumes his wonted amusements^ 
 he shall be punished with 60 blows." 
 
 "When any officer or other person in the employ of government, has 
 received intelligence of the death of his father or mother, in consequence 
 of which intelligence he is bound to retire from office during the period 
 of mourning; if, in order to avoid such retirement, he falsely represents 
 the deceased to have been his grand-father, grand-mother, uncle, aunt, 
 or cousin, he shall suffer the punishment of 100 blows, be deposed from 
 office, and rendered incapable of again entering into the public service."^ 
 
 "On the other hand, if any officer of government falsely alleges the 
 pretext of mourning, while his parents are still living, or after they are 
 so long dead that the period of mourning had expired, he shall be liable 
 to the same punishment as in the opposite case last mentioned." 
 
 "If either of the foregoing misrepresentations should be designed to 
 effect any criminal purpose, the offender shall be liable to any aggrava- 
 tion of the punishment which may be comformable to the law, applicable 
 to the case under such circumstances." 
 
 "If, previous to the expiration of the lawful term of absence in con- 
 sequence of the loss of a parent, any officer or other person in the employ 
 of government, returns to, and resumes his office or command, he shall 
 be deprived thereof, and punished with 80 blows. If the superior officers 
 
PENAL CODE OF CHINA 1103 
 
 of the same department are aware that the return of the mourner is 
 premature, and nevertheless permit him to resume his functions, they 
 shall be equally punishable; but if not aware of the fact, they shall not 
 be responsible." 
 
 "Those officers of government, who hold remote and important sta- 
 tions and commands, shall not be bound by the above regulations on 
 the arrival of the intelligence of the death of their parents, as the 
 line of conduct they are to pursue on such occasions will always be 
 determined by express orders from the Emperor." (Sec. 179.) 
 
 "If any person, in order to hold an office under government, absents 
 himself from a father, mother, paternal grandfather, or grandmother, 
 who is either upwards of 80 years of age, or totally disabled by any 
 infirmity, while such near relation has no other male offspring above 
 sixteen years of age, to perform the duties of filial piety; or if on the 
 contrary, any person being in office, solicits permission to retire to his 
 family, upon a falsely alleged pretext of the age or infirmity of any 
 such near relation as aforesaid, the offender, in either of these opposite 
 cases, shall suffer a punishment of 80 blows." 
 
 "Whoever plays on musical instruments, or partakes of feasts at home 
 or abroad, while her husband, or his or her father, mother, paternal 
 grandfather or grandmother, are in confinement upon a charge of a 
 capital offense, shall also be liable to the aforesaid punishment." (Sec. 180.) 
 
 Funerals are strictly regulated, and failure to observe the established 
 rites is punishable with from 80 to 100 blows. 
 
 The 5th division contains the military laws for the government of the 
 imperial palace, the guards and the army. The regulations are quite 
 minute and voluminous and not deemed of especial interest. The size 
 of the empire of China with its single head renders rapid communication 
 between its remote parts necessary. The Chinese were far in advance of 
 the Europeans in establishing a system of transmitting dispatches, and 
 it was only with the advent of railroads and telegraphs that the postal 
 system of the West became superior to that of China. It is provided in 
 Section 238: 
 
 "The military post-soldiers charged with the transmission of government 
 orders and dispatches, must proceed on their route at the rate of 300 lee 
 in a day and a night: If through dilatoriness they exceed the time to 
 the extent of three quarters of an hour (an hour and a half European 
 computation), they shall be punished with 20 blows; and the punishment 
 shall increase by a progressive ratio of one degree for each additional 
 delay of three-quarters of an hour, until it amounts to 50 blows." 
 
 "Immediately that the dispatches of government arrive at any military 
 post or station, the post-master shall not fail to forward them, whether 
 many or few, under the charge of the soldiers who are placed under his 
 jurisdiction for that purpose." 
 
ri04 APPENDIX 
 
 Not only are provisions made for swift messengers, but post-houses are 
 stationed at convenient distances along all the roads and the post master 
 general of the district is required to keep them in repair under penalty 
 of 50 blows. Severe penalties are denounced against messengers failing 
 in their duty and against any one interfering with them in making their 
 journeys. 
 
 The 6th subdivision is devoted to criminal laws. High treason is thus 
 defined and punished : 
 
 "High treason, is either treason against the state, by an attempt to 
 subvert the established government; or treason against the Sovereign, 
 "by an attempt to destroy the palace in which he resides, the temple in 
 which his family is worshipped, or the tombs in which the remains of 
 his ancestors are deposited." 
 
 "All persons convicted of having been principals or accessaries to the 
 actual or designed commission of this heinous crime, shall suffer death 
 by a slow and painful execution." 
 
 "All the male relations in the first degree, at or above the age of 
 sixteen, of persons convicted as aforesaid; namely, the father, grand- 
 father, son, gradsons, paternal uncles, and their sons respectively, shall, 
 without any regard to the place of residence, or to the natural or 
 acquired infirmities of particular individuals, be indiscriminately beheaded." 
 
 "All the other male relations at or above the age of sixteen, however 
 distant their relationship, and whether by blood or by marriage, shall 
 likewise suffer death, by being beheaded, if they were living under the 
 same roof with the treasonable offender, at the time the offence was 
 committed." 
 
 "The male relations in the first degree, under the age of sixteen and 
 the female relations in the first degree, of all ages, shall be distributed 
 as slaves to the great officers of state." (Sec. 254.) 
 
 "All persons convicted of writing and editing books of sorcery and 
 magic, or of employing spells and incantations, in order to agitate and 
 influence the minds of the people, shall be beheaded, after remaining in 
 prison the usual period. If the influence of such acts shall not have 
 extended beyond a few persons, the criminal shall be banished perpetually 
 to the distance of 3000 lee; and generally, the punishment shall be pro- 
 portionate to the nature of the case, and therefore more or less severe 
 according to circumstances." 
 
 "All persons who are guilty of retaining in their possession, and con- 
 cealing from the magistrates, any books of the above description, shall 
 be punished with 100 blows, and banished for three years." (Sec. 256.) 
 
 "All persons guilty of stealing the consecrated oblations offered up by 
 the Emperor to the spirits of Heaven and Earth, or any of the sacred 
 utensils, cloths, meat-offerings, and precious stones used on such occasions, 
 shall whether principals or accessaries to the offense, whether previously 
 
PENAL CODE OF CHINA 1105 
 
 entrusted or not with the charge of the said articles, in all cases, be 
 beheaded." (Sec. 257.) 
 
 "All persons guilty of having been principals or accessaries to the 
 crime of stealing an Imperial edict, after it has received the impression 
 of the great Imperial seal, shall be beheaded." (Sec. 258.) 
 
 "All persons concerned as principals or accessaries in the offense of 
 forcibly rescuing, or attempting to rescue any lawful prisoner, shall suffer 
 death by being beheaded, after confinement during the usual period." 
 (Sec. 267.) 
 
 Theft is punishable by a graduated scale ranging from 60 blows for 
 stealing one ounce of silver to death by strangulation for taking 120- 
 ounces. Larceny of property is punishable according to the same scale 
 of value. Where the theft is from a relation by blood or marriage in 
 the first degree, it is reduced five degrees, from those in the second 
 degree, four degrees, in the third, three and in the fourth two and 
 from other relations one degree less than if from a stranger. 
 
 "All persons guilty of digging in, and breaking up another man's burying- 
 ground, until at length one of the coffins which had been deposited therein, 
 is laid bare and becomes visible, shall be punished with 100 blows, and 
 perpetual banishment to the distance of 3000 lee/^ 
 
 "Any person who, after having been guilty as aforesaid, proceeds to 
 open the coffin, and uncover the corpse laid therein, shall be punished 
 with death, by being strangled, after undergoing the usual confinement."" 
 (Sec. 276.) 
 
 This section is long and contains many provisions for punishing the 
 desecration of burying grounds. The punishment of robbery is gen- 
 erally capital but there are various grades of this offense to which less 
 penalties are assigned. 
 
 The distinction between principal and accessary of this code makes 
 the contriver of the crime principal and the others accessaries. Actual 
 participation in the perpetration of the crime is not made the basis of 
 distinction between them. Attempts and designs to commit crime though 
 not carried into execution are also punishable in a less degree. Homicide 
 in various degrees is defined and punished with death. 
 
 "Any person convicted of a design to kill his or her father or mother, 
 grandfather or grandmother, whether by the father's or mother's 
 side ; and any woman convicted of a design to kill her husband, husband's 
 father or mother, grandfather or grandmother, shall, whether a blow 
 is or is not struck in consequence, suffer death by being beheaded. In 
 punishing this criminal design, no distinction shall be made between 
 principals and accessaries, except as far as regards their respective 
 relationships to the person against whose life the design is entertained. 
 If the murder is committed, all the parties concerned therein, and 
 related to the deceased as above mentioned, shall suffer death by a 
 
£iio6 APPENDIX 
 
 slow and painful execution. If the criminal should die in prison, an 
 execution similar in mode shall take place on his body. The accessaries 
 more distantly related, shall be punished according to the law particularly 
 applicable to the cases of persons so related; and those accessaries who 
 are not related at all, shall be punished as similar offenders would be 
 in ordinary cases." (Sec. 284.) 
 
 An adulterer and his paramour, caught in the act, may be immediately 
 killed by the husband, but not afterward. 
 
 "All persons rearing venomous animals, or preparing drugs of a 
 poisonous nature, for the purpose of applying the same to the destruc- 
 tion of men, or instructing others so to do, shall be beheaded, although 
 no person is actually killed by means of such drugs or animals. The 
 property of the person guilty of this crime, shall be forfeited to govern- 
 ment, and his wives and children, as well as the other inmates of his 
 house, although innocent of the crime, shall be perpetually banished 
 to the distance of 2000 lee." (Sec. 289.) 
 
 Killing by accident or mistake is punished less severely according to 
 circumstances, 
 
 "If a wife strikes and abuses her husband's father or mother, grand- 
 father, or grandmother, and the husband, instead of accusing her 
 before a magistrate, kills her in consequence of such offense, he shall 
 be punished with 100 blows." 
 
 "If a wife, having been struck and abused by her husband, in con- 
 sequence thereof kills herself, the husband shall not be responsible. 
 When a wife, after her husband's father and mother, grandfather and 
 grandmother are dead, is guilty of disrespect to their memory only, 
 or is charged with some other fault not worthy of death according to the 
 laws, if thereupon the husband kills her, he shall suffer the punishment 
 of death, by being strangled, after the usual period of confinement." 
 (Sec. 293.) 
 
 "Whoever is guilty of killing his son, his grandson, or his slave, and 
 attributing the crime to another person, shall be punished with 70 blows, 
 and one and one half year's banishment." 
 
 "Any person attributing, previous to burial, the death of his father, 
 mother, grandfather or grandmother; and any slave in like manner, 
 attributing the death of his inaster to a person innocent thereof, shall, 
 if aware of the falsehood of the imputation be punished with 100 blows, 
 and three years banishment." (Sec. 294.) 
 
 "When unskilful practitioners of medicine or surgery, administer 
 drugs, or perform operations with the puncturing needle, contrary to 
 the established rules and practice, and thereby kill the patient, the 
 magistrates shall call in other practitioners to examine the nature of 
 the medicine, or of the wound, as the case may be, which proved 
 mortal; and if it shall appear upon the whole to have been simply an 
 
PENAL CODE OF CHINA 1107 
 
 error, without any design to injure the patient, the practitioner of 
 medicine shall be allowed to redeem himself from the punishment of 
 homicide, as in cases purely accidental, but shall be obliged to quit his 
 profession forever." (Sec. 297.) 
 
 "If it shall appear that a medical practioner intentionally deviates 
 from the established rules and practice, and while pretending to remove 
 the disease of his patient, aggravates the complaint, in order to extort 
 more money for its cure, the money so extorted shall be considered to 
 have been stolen, and punishment inflicted accordingly, in proportion 
 to the amount." 
 
 "If the patient dies, the medical practitioner who is convicted of 
 designedly employing improper medicines, or otherwise contriving to 
 injure his patient, shall suffer death by being beheaded, after the usual 
 period of confinement." 
 
 Section 302 contains minute provisions for the punishment of assaults 
 of many kinds, the number of blows to be inflicted depending on the 
 nature of the injury or indignity offered. Quarreling, fighting and 
 wounding another within the Imperial Palace is punished more severely 
 than elsewhere. Striking or wounding a person of the Imperial blood 
 is also an aggravated offense but not punishable capitally unless the 
 injury amounts to incurable infirmity. Assaulting an officer of the 
 government is also an aggravated offense but not made a capital crime. 
 Apprentices striking their masters are liable to two degrees heavier 
 punishment. A slave striking a free person is punished one degree more 
 severely, and a free person striking a slave one degree less severely, but 
 killing a slave is a capital offense. A slave designedly striking his 
 master is punishable with death. If the master intentionally kills his 
 slave he is liable to 60 blows and one year's banishment, and if he de- 
 signedly kills a hired servant he shall be strangled. 
 
 "Any person who is guilty of striking his father, mother, paternal 
 grandfather or grandmother; and any wife who is guilty of striking her 
 husband's father, mother, paternal grandfather or grandmother, shall 
 suffer death by being beheaded. Any person who is guilty of killing 
 such a near relation, shall suffer death by a slow and painful execution. 
 "Any person who kills so near a relation, purely by accident, shall 
 still be punished wth 100 blows and perpetual banishment to the dis- 
 tance of 3000 Ice. In the case of wounding purely by accident, the 
 person convicted thereof, shall be punished with 100 blows and three 
 years banishment; in these cases, moreover, the parties shall not be 
 permitted to redeem themselves from punishment by the payment of a 
 fine, as usual in the ordinary cases of accident." 
 
 "If a father, mother, paternal grandfather or grandmother, chastises 
 a disobedient child or grandchild in a severe and uncustomary manner, 
 so that he or she dies, the party so offending shall be punished with 
 
iio8 APPENDIX 
 
 loo blows. When any of the aforesaid relations are guilty of killing 
 such disobedient child or grandchild designedly, the punishment shall 
 be extended to 60 blows and one year's banishment." (Sec. 319.) 
 
 "Whoever, upon perceiving a father, mother, paternal grandfather or 
 grandmother, to be struck by any person, immediately interposes in 
 defense of such near relation, and strikes the aggressor, shall, unless 
 striking such a blow as to produce a cutting wound, be entirely justified 
 and free from responsibility; and even if the wound inflicted by the 
 individual who interposes under such circumstances is severe, he shall 
 be punished less severely by three degrees than in ordinary cases; ex- 
 cepting only those instances in which the blows struck prove mortal, 
 when the punishment shall be the same as in ordinary cases. To entitle 
 however, any person to the benefit of this law, it must always be 
 strictly proved that the blows were inflicted on the impulse of the 
 moment, and actually in defense of such aforesaid relation." (Sec. 323.) 
 
 "In ordinary cases, all persons guilty of employing abusive language 
 shall be liable to a punishment of 10 blows; and persons abusing each 
 other, shall be punishable with 10 blows respectively." (Sec. 324.) 
 
 Abusive language to officers is punished more severely, 
 
 "All the subjects of the empire, whether soldiers or citizens, who 
 have complaints and informations to lay before the officers of govern- 
 ment, shall address themselves in the first instance, to the lowest tribunal 
 of justice within the district to which they belong, from which the 
 cognizance of the affair may be transferred to the superior tribunals 
 in regular gradation. Any individual who instead of addressing him- 
 self to the proper magistrate within his district, proceeds at once to 
 lay his complaint and information before a superior tribunal, shall be 
 punished with 50 blows, although his complaint should be just, and his 
 information correct." 
 
 "It is however lawful to appeal to a superior magistrate, when the in- 
 ferior officer of justice refuses to receive the information and complaint, 
 or decides thereon unjustly; but not otherwise." 
 
 "Whoever, in order to present an information, detains an officer of 
 justice in his public progress and whoever, for the same purpose, sum- 
 mons any officer of justice to his tribunal by beat of drum, shall be pun- 
 ished with 100 blows; if his information be false and complaint ground- 
 less; and if he should be likewise guilty of the crime of a false and 
 malicious accusation against any person, he shall be punished as much 
 more severely as the law applicable to such cases of criminality may 
 authorize." 
 
 "Nevertheless, if his cause is found to be a just one, the irregularity 
 of his proceedings shall be pardoned." (Sec. 332.) 
 
 "Any person who addresses and presents an information and complaint 
 to an officer of government, containing direct criminal charges against 
 a particular individual, without having inserted therein his (the infor- 
 
PENAL CODE OF CHINA 1109 
 
 mant's) proper name and family name, shall, although the charges should 
 prove true, be punished with death, by being strangled at the usual 
 period." (Sec. 333.) 
 
 "When an information concerning a charge of high treason or re- 
 bellion is regularly presented to an officer of government, if he does not 
 immediately receive and act thereon, that is to say, take measures for 
 seizing culprits, and preventing the progress of such disorders, he shall 
 be liable to a punishment of 100 blows and three years banishment, al- 
 though no evil consequences should ensue fron\ his neglect; but if 
 through his inattention, considerable numbers are suffered to assemble 
 tumultuously, attacking forfeited stations, ravaging the country, and 
 distressing the inhabitants, such officer of government shall suffer death, 
 by being beheaded at the usual period." (Sec. 334.) 
 
 "Whenever any information is laid before a magistrate, who is related 
 by blood or by marriage to the accuser or to the accused, who was 
 educated by, or had ever served under either party, or who, lastly, had 
 been habitually the enemy or public adversary of either; in all such 
 cases the magistrate must decline to act thereon, and shall therefore 
 transfer it forthwith to another jurisdiction." 
 
 "Any magistrate who takes cognizance of a case under such circum- 
 stances, shall be liable to a punishment of 40 blows; although he should 
 have pronounced a just and impartial sentence: — otherwise, he will be 
 liab)e to the severe punishment attending an intentional deviation from 
 justice." (Sec. 335.) 
 
 "Whoever lays before a magistrate a false and malicious information, 
 in which some person is expressly charged with a crime punishable 
 with any number of blows, not exceeding 50, shall suffer a punishment 
 two degrees more severe than that which the accused would have 
 merited had the accusation been true. If the crime falsely alleged 
 was punishable with more than 50 blows, or with temporary or per- 
 petual banishment the punishment of the accuser shall be three degrees 
 more severe than that to which the accused is rendered liable; but shall 
 not, in these, or in any of the preceding cases, be so increased as to 
 become capital." (Sec. 336.) 
 
 This is a long section with many modifying clauses and seems to 
 indicate that malicious prosecutions are very numerous. 
 
 "In all cases of exciting and disposing others to inform and prosecute, 
 the person who draws up the information for the prosecutor, and by any 
 aggravation or extenuation deviates from the truth, shall be liable to 
 the same punishment as the false accuser; except in a capital case, 
 when his punishment shall be reduced one degree. In the case of hiring 
 any person to present and prosecute a false accusation, the person hired 
 shall be liable to the same punishment as the false accuser, under the 
 same mitigation in capital cases, as in the preceding instances." (Sec. 340.) 
 
mio APPENDIX 
 
 "All civil and military officers, and also all persons who have em- 
 ployments without rank under government, shall, when convicted of 
 accepting a bribe for a lawful or for an unlawful purpose, be punished 
 in proportion to the amount thereof, as stated in the subjoined table; 
 and moreover be deprived of their rank and offices, if having any; and 
 if not, of their actual employments whatever they may be. Those 
 who are not in the receipt of any salary, or of a salary not amounting to 
 one stone of rice per month in value, shall be punished less severely, 
 in every case, by one. degree." (Sec. 344.) 
 
 There are many sections relating to bribery of and extortion by public 
 officers against which punishments are denounced. Forgeries and frauds 
 of many kinds are defined and their punishments declared, ranging all the 
 way from minor punishment with the bamboo to beheading for forging 
 an imperial edict. 
 
 "Criminal intercourse by mutual consent with an unmarried woman, 
 shall be punished with 70 blows ; if with a married woman, the punishment 
 shall be 80 blows." 
 
 "Deliberate intrigue with a married or unmarried woman shall be 
 punished with 100 blows." 
 
 "Violation of a married or unmarried woman; that is to say, a rape, 
 shall be punished with death by strangulation." 
 
 "An assault with an intent to commit a rape, shall be punished with 
 100 blows, and perpetual banishment to the distance of 3000 lee. In 
 these cases, however, the conviction of the offender must be founded 
 on decisive evidence of force having really been employed." 
 
 "Criminal intercourse with a female under twelve years of age, shall 
 be punished as a rape in all cases." (Sec. 346.) 
 
 "Civil or military officers of government, and the sons of those who 
 possess hereditary rank, when found guilty of frequenting the company 
 of prostitutes and actresses, shall be punished with 60 blows." 
 
 "All persons who are guilty of negotiating such criminal meetings and 
 intercourse, shall suffer the punishment next in degree." (Sec. 374.) 
 
 "In all civil and military jurisdictions, where there are private soldiers 
 attached to the government stations, or laiborers employed in the 
 public works; whenever such persons are suffering under any disease 
 or infirmity, the officer in command shall duly communicate the circum- 
 stance to the officer whose province it is to furnish medicines and medical 
 aid to the sick; if he fails to make such communication, or in the 
 event of such communication having been made, if the proper officer 
 does not provide sufficient medical assistance, the individual neglecting 
 his duty shall be liable to the punishment of 40 blows; and this punish- 
 ment shall be increased to 80 blows, whenever the sick person dies in 
 consequence of such neglect." (Sec. yjl ?) 
 
 "All the accessaries^ as well as principals, to the crime of wilfully 
 
PENAL CODE OF CHINA iiii 
 
 and maliciously setting on fire any residence, either of an officer of gov- 
 ernment, or of any private individual, their own only excepted, or to 
 the crime of, in the same manner setting fire to any government or 
 private building, treasury, or store-house, in which public or private 
 property of any kind is stored and deposited, shall be punished with 
 death, by being beheaded at the usual period." (Sec. 383.) 
 
 "All persons who, after having entered into the service of government 
 as constables, bailiffs, theif-takers, or in any capacity of that description, 
 at any time allege pretexts of excusing themselves from the duty of 
 pursuing and seizing offenders; or do not actually pursue and seize 
 those offenders, with the place of whose retreat they are acquainted, 
 shall in each case, be liable to the punishment next in degree to that 
 which is due to the offender, or to the most guilty of the offenders, if there 
 should be more than one, whom their neglect had occasioned to remain 
 at large." (Sec. 387.) 
 
 Many penalties are denounced against officials for neglect or misconduct 
 with reference to the arrest, detention and punishment of offenders. 
 
 "Whenever the individuals committed to prison, have no families or 
 relations by whom they may be supplied with necessaries, the superior 
 authorities shall be addressed for leave to supply them with clothes and 
 provisions, and, whenever they are sick, with medicines and medical 
 assistance ; leave shall also be asked in favor of those who are net 
 charged with capital crimes, that they may, when sick, be released from 
 their fetters and handcuffs; and in favor of those who are only liable 
 to a punishment of 50 blows or less, that they may when sick be let 
 out of prison, upon sufficient security being given for their return ; and 
 lastly, in favor of those who are dangerously sick or incurably infirm, 
 that their families may have free access to them." (Sec. 401.) 
 
 "It shall not, in any tribunal of government, be permitted to put the 
 question by torture to those who belong to any of the eight privileged 
 classes, in consideration of the respect due to their character; to those 
 who have attained their seventieth year, in consideration of their ad- 
 vanced age; to those who have not exceeded their fifteenth year, out of 
 indulgence to their tender youth and lastly, to those who labour under 
 any permanent disease or infirmity, out of commiseration for their situa- 
 tion and sufferings. In all such cases, the offenses of the parties accused 
 shall be determined on the evidence of facts and witnesses alone; and 
 all officers of government who disregard the restrictions of this law, 
 shall be punished either according to the law against a designed, or the 
 law against a careless aggravation of the punishment of an offender, 
 according as the said misconduct on the part of the magistrate is attribut- 
 able to design, or to inattention." 
 
 "Moreover, in all cases in which the circumstances or connexion 
 between the parties produce a legal incapacity, or in the case of individuals 
 
rii2 APPENDIX 
 
 arrived at eighty, or under ten years of age, or entirely and permanently 
 infirm, it shall not be permitted even to require or to receive their testi- 
 mony; every breach of this law in any tribunal of government, shall 
 be punished accordingly with 50 blows, and the clerk of the court 
 esteemed, as in all other cases of misconduct in a joint and official 
 capacity, the principal offender." (Sec. 404.) 
 
 A very curious table is contained in Section CCCCIX giving the 
 punishments to Ibe inflicted on the clerk of the court, the deputy 
 or executive officer, the assessors and the presiding magistrate for 
 wrong judgments, divided into classes, the first where a wrong judgment 
 is made by design and the second through error of judgment. The 
 clerk of the court is punished most severely and the presiding magistrate 
 least. 
 
 "Female offenders shall not be committed to prison except in capital 
 cases, or cases of adultery." 
 
 "In all other cases, they shall, if married, remain in the charge and 
 custody of their husbands, and if single, in that of their relations, 
 or next neighbours, who shall, upon every such occasion, be held responsible 
 for their appearance at the tribunal of justice, when required." 
 
 "All magistrates committing women to prison contrary to the pro- 
 visions of this law, shall suffer the punishment of 40 blows." 
 
 "If any female who is condemned to corporal punishment, or to the 
 question by torture, is discovered to be with child, she shall be sent 
 back to the custody of the responsible persons aforesaid, and not be 
 subjected to punishment or to the question by torture, until 100 days 
 complete are elapsed from the period of her delivery." (Sec. 420.) 
 
 "All magistrates who authorize the execution of any capitally con- 
 victed offender, without waiting for the Imperial rescript, containing 
 the ratification of the sentence grounded upon their final report of the 
 case, shall be punished, at the least, with 80 blows." 
 
 "After the warrant of execution is received, a further delay shall be 
 allowed, of three days, during which if the criminal is executed, or 
 after which, if he is not immediately executed, the responsible officer 
 of government shall be liable to the punishment of 60 blows. Nevertheless, 
 in the case of robbers, and those who are sentenced to be executed for 
 any of the ten treasonable offenses, a breach of this law shall only be 
 punished with 40 blows." (Sec. 421.) 
 
 "If after a sentence is pronounced against an offender in a tribunal 
 of justice, he is permitted to redeem himself from banishment or corporal 
 punishment, in a case that is not by law redeemable; or if he is banished 
 or corporally punished, in a case that is redeemable, the punishment 
 of such false construction of the laws, shall be only one degree less 
 severe than that of an entirely unjust and groundless sentence, under 
 similar circumstances." 
 
PENAL CODE OE CHINA 1113 
 
 "If an offender who, conformably to the laws, ought to be strangled, 
 is beheaded; or beheaded, when he ought to have been strangled; such 
 deviation, if wilful, shall be punished with 60 blows; if committed by 
 mistake, with 30 blows." (Sec. 422.) 
 
 "A determinate quantity of silks and stuffs, and of military weapons, 
 shall be annually manufactured and prepared for the public service, 
 in each subdivision of the department of public works; and if any of 
 the workmen fail to provide in due season their assigned proportion, 
 they shall be liable, at the least, to a punishment of 20 blows; and 
 the punishment shall be increased as far as 50 blows, at the rate of 
 one degree for every additional tenth deficient: the punishment of the 
 superintending officer of the work, shall be one degree less severe, and 
 that of the officer superintending the supplies, two degrees less severe, 
 than that of the workman." 
 
 "On the other hand, if the raw materials are not delivered to the 
 workmen in sufficient quantities, and at proper times, the superintending 
 officer of the manufactory shall suffer a punishment of 40 blows, and 
 the superintendent of supplies a punishment of 30 blows; the workmen 
 shall, in such cases, be excused." (Sec. 430,) 
 
 "When any of the government residences, granaries, treasuries, manu- 
 factories, or other buildings, are in a defective or ruinous condition, 
 the officer having charge thereof, shall immediately report the same to 
 his superior, and state the nature of the repairs that are required; 
 and he shall be liable to a punishment of 40 blows, whenever he 
 neglects to do so: if, in consequence of such neglect, any public property 
 should happen to be injured or destroyed, he shall, besides the aforesaid 
 punishment to which he is liable, be obliged to make good the same 
 to government." 
 
 "On the other hand, if, a regular notice having been given to the 
 superior officer, the latter neglects to authorize the necessary repairs, 
 he alone will be liable, both to the punishment, and to the obligation of 
 making good the amount of the contingent damages." (Sec. 431.) 
 
 "If any of the governors of cities of the first, second, or third order, 
 or of any other provincial sub-divisions, instead of inhabiting the public 
 buildings expressly allotted to their use, hire, and reside in private houses 
 belonging to the inhabitants of the districts under their authority, they 
 shall, for every such offense, be punishable with 80 blows." (Sec. 432.) 
 
 "When the embankments of great rivers are not duly repaired and 
 maintained, or repaired unseasonably, the superintending officer in that 
 department shall be punished with 50 blows; if any lands, goods, or 
 other articles of property of any kind, are damaged by an inundation 
 in consequence of such neglect and misconduct, the punishment shall 
 be increased to 60 blows; and if any persons are killed or injured, 
 to 80 blows. In the case of private embankments, the responsible persons 
 
I.II4 APPENDIX 
 
 neglecting to repair them at the proper seasons, shall be liable to a 
 punishment of 30 blows ; and if any damage ensues, in consequence of such 
 neglect, to a punishment of 50 blows," 
 
 "Nevertheless, in respect to those sudden and impetuous inundations, 
 which are produced by heavy rains, or other similar causes, and which 
 sometimes wash away, and break down irresistibly, all ordinary embank- 
 ments; as it is not in the power of man always to foresee and guard 
 against such accidents, the parties usually held responsible, shall not 
 be liable in such cases to any punishment." (Sec. 434.) 
 
 "Any person who encroaches upon the space allotted to public streets, 
 squares, high-ways, or passages of any kind; that is to say, who appro- 
 priates a part of any such space to his own use, by cultivating it, or 
 building on it, shall be punished with 60 blows, and obliged to level and 
 restore the ground to its original state," 
 
 "Any person who opens a passage through the wall of his house, to 
 carry off filth or ordure into the streets or high-ways, shall be punished 
 with 40 blows; but in the case of a passage being opened to carry off 
 water only, no penalty or punishment shall be inflicted." (Sec. 435.) 
 
 "The repair of all bridges, whether permanent or formed for tem- 
 porary use, of boats only; and also of all roads and high-ways, shall 
 come under the cognizance and jurisdiction of the governors of the cities 
 of the different orders, their assessors, and deputies ; and there shall be 
 a special examination of the same, during the interval between the 
 harvests of each year, in order to ascertain that the bridges are main- 
 tained in a firm and complete condition, and that the roads are solid 
 and even : when the regular communication by any of the said estab- 
 lished roads and bridges is interrupted, for want of due attention to 
 the necessary repairs, the responsible magistrate shall suffer a punishment 
 of 30 blows for his neglect; also in places of customary communication, 
 where bridges ought to be built, or ferry-^boats stationed for the accommo- 
 dation of the inhabitants, a failure to do so in either case, shall be 
 punished with 40 blows." (Sec. 436.) 
 
 THE CIVIL CODE OF FRANCE 
 
 The Code Napoleon, which with the amendments since made is now 
 called the Civil Code of France, contains twenty-two hundred and 
 eighty-one sections and is published in a single volume. The preliminary 
 title provides that laws become enforceable from the moment the promul- 
 gation can have become known, that the law can have no retroactive 
 effect, that laws of police and public order are binding on all who live 
 in the territory, that all real estate is governed by French law, and 
 laws relating to the status of French people apply to those residing in 
 foreign countries. 
 
 4. "A judge who refuses to render judgment under pretence that the 
 
CIVIL CODE OF FRANCE 1115 
 
 law is silent, obscure or insufficient, may be prosecuted as being guilty 
 of denying justice." 
 
 5. "Judges are not allowed to decide cases submitted to them by 
 way of general and settled decisions." 
 
 6. "Laws relating to public order and morals cannot be derogated 
 from by private agreement." 
 
 Book I is "Of Persons," the first title is "Of the Enjoyment and Loss 
 of Civil Rights." It furnishes rules for determining who are French 
 and who are aliens and how civil rights may be acquired and lost. 
 The second title is "Of Certificates of Civil Status." All births must 
 be reported to the officer of civil status by a certificate in due form 
 showing day and hour of birth, sex, name and names of parents and 
 this certificate must be duly recorded. "Before the celebration of a 
 marriage the officer of civil status shall make two publications on Sun- 
 day at an interval of eight days in front of the door of the city hall." 
 The marriage must be celebrated within a year or a new publication 
 must be made. "The marriage shall not be celebrated before the third 
 day after and exclusive of the day of the second publication." Instru- 
 ments of opposition may be served and be entered on the register, and 
 the marriage cannot be celebrated until the opposition is withdrawn 
 or adjudged insufficient. 
 
 75. "Upon the day designated by the parties, after the time for the 
 publications, the officer of civil status shall read to the parties in the 
 city hall, in the presence of four witnesses, related, or not, the papers 
 above mentioned relating to the civil status of the parties and to the 
 formalities of marriage, and he shall also read Chapter VI. of the 
 respective rights and duties of husband and wife of the title of marriage." 
 
 "He shall ask the future husband and wife and the persons authorizing 
 the marriage, if they are present, to declare whether a marriage contract 
 has been made, and in case of the affirmative, the date of this contract 
 and also the name and residence of the notary who made it. 
 
 "He shall receive from each party, one after the other, the declaration 
 that they wish to take each other as husband and wife; he shall declare 
 in the name of the law that they are united by marriage and he shall 
 immediately draw up a certificate to that effect." 
 
 "No burial shall take place without a permit of the officer of civil 
 status." Certificates of death are required to be made and the formalities 
 connected with them are given in detail. Provision is also made for 
 certificates of civil status of soldiers and sailors. Corrections of certificates 
 of civil status may be applied for and granted by the Tribunal of the 
 place where the certificate has been drawn up. 
 
 The interested parties shall be summoned if necessary. 
 After this follow Titles Third. "Of Domicil" and Fourth "Of Ab- 
 sentees." Where a person has been absent from his domicil five years 
 
iii6 APPENDIX 
 
 his absence may be adjudged and his presumptive heirs or legatees put 
 in provisional possession of his property, but if the absentee left a 
 power of attorney his absence cannot be established till after ten years. 
 
 125. "Provisional possession is only a deposit, which secures to those 
 who obtain it the administration of the property of the absentee and 
 which makes them accountable to him if he appears or if he is heard 
 from." 
 
 After thirty years absence or one hundred years from the birth of 
 the absentee the property may be finally divided among the heirs or 
 devisees. If the absentee returns or his existence is established the 
 proceeding is avoided. 
 
 Title Fifth is "Of Marriage," and is divided into eight chapters. 
 
 Males must be eighteen and females fifteen to contract a marriage, 
 but the President of the Republic may grant dispensations for serious 
 causes. A son under twenty-five and a daughter under twenty-one must 
 have the consent of father and mother or the father alone in case of 
 disagreement. Many formalities are required. Marriages may be annulled 
 by action brought by a party or a parent, whose consent was required 
 but not given, if brought within the periods limited. 
 
 203. "The husband and wife, by the sole fact of the marriage, assume 
 together the obligations of supporting, maintaining and educating their 
 children." 
 
 "Children owe support to their father, mother and other ascendants 
 who are in want." 
 
 206. "Sons-in-law and daughters-in-law owe likewise under the same 
 circumstances support to their father-in-law and mother-in-law, but this 
 obligation ceases : 
 
 1. When the mother-in-law has contracted a second marriage; 
 
 2. When the husband and wife owing to whom the affinity existed 
 and the children born of his or her marriage with such wife or husband 
 are dead." 
 
 212. "Husband and wife owe each other fidelity, support, jmd assistance." 
 
 213. "A husband owes protection to his wife; a wife obedience to her 
 husband." 
 
 214. "A wife is bound to live with her husband and to follow him 
 wherever he deems proper to reside. The husband is bound to receive 
 her, and to supply her with whatever is necessary for the wants of 
 life, according to his means and condition." 
 
 215. "A wife cannot sue in court without the consent of her husband, 
 even if she is a public tradeswoman, or if there is no community, or 
 she is separated as to property." 
 
 217. "A wife, even when there is no community, or when she is 
 separated as to property, cannot give, convey, mortgage, or acquire 
 property, with or without consideration, without the husband joining in 
 the instrument or giving his written consent." 
 
CIVIL CODE OF FRANCE . 1117 
 
 If the husband refuse to allow his wife to sue or execute an instrument, 
 the Tribunal of First Instance may grant her leave. A married trades- 
 woman may bind herself by her contracts in her business without the 
 consent of her husband. 
 
 22"/. "Marriages are dissolved : 
 
 1. By the death of the husband or wife; 
 
 2. By a divorce lawfully decreed; 
 
 3. By a final sentence against the husband or wife to a punishment 
 occasioning civil death." (Civil death was abolished in 1854.) 
 
 228. » "A wife cannot contract a second marriage until ten months have 
 elapsed since the dissolution of the previous marriage." 
 
 Title Sixth is "Of Divorce." 
 
 Adultery, violence, cruelty, gross insults and a sentence to degrading 
 corporal punishment are grounds of divorce. By the Code Napoleon 
 the wife can sue the husband for a divorce on the ground of adultery 
 only when he brought his concubine into their common residence. This 
 clause was striken out by amendment in 1^4, and the same rules now 
 apply to both husband and wife. Divorces may be either absolute or 
 from bed and board. The court has power to make provision for tem- 
 porary care of property and support and the care of the children. Pub- 
 lication of the proceedings by the press is prohibited under penalty. 
 Appeals from judgments of divorce may be taken to the Court of Cassation 
 and such an appeal stays execution. 
 
 Alimony may be granted to either party, not exceeding one-third the 
 income of the other. The court determines as to the custody of the 
 children. 
 
 Title Seventh is "Of Paternity and Filiation." It gives rules for deter- 
 mining the legitimacy of children and for the acknowledgement of 
 natural children. Title Eighth is "of adoption and officious guardianship." 
 
 343. "Persons of either sex can only adopt when they are over fifty 
 years of age; when, at the time of the adoption, they have no children 
 nor legitimate descendants, and when they are at least fifteen years older 
 than the individuals whom they propose to adopt." 
 
 Adoption cannot take place before the adopted is of full age, nor 
 till after the Tribunal of First Instance of the District in which the 
 adopter resides has determined that there is occasion for it. 
 
 361. "Every individual over fifty years of age, without children or 
 legitimate descendants, who wishes, during the minority of a person 
 to attach that person to himself in a legal way, may become his officious 
 guardian by obtaining the consent of the father and mother of the child, 
 or of the survivor of them, or in default thereof the consent of the 
 family council, or finally, if the child has no parents who are known, 
 the consent of the administrators of the asylum where he has been re- 
 ceived or the municipality of the place of his residence." 
 
iii8 APPENDIX 
 
 362. "A married person cannot become an officious guardian without 
 the consent of the husband or wife." 
 
 364. "Such guardianship shall only be allowed in favor of children 
 of less than sixteen years of age. 
 
 It carries with it, without prejudice to any special stipulations, the 
 obligation to support the ward, to bring him up, and to place him in a 
 condition to earn a living.'' 
 
 Title Ninth is "Of Paternal Authority." 
 
 376. "If the child has not yet commenced his sixteenth year, the 
 father can have him incarcerated during a period of time not exceeding 
 one month: for that purpose the Presiding Justice of the Tribunal of 
 the District must at his request issue an order of arrest." 
 
 Z'77. "From the beginning of the childs sixteenth year, until his 
 majority or emancipation, the father can only ask that the child be 
 incarcerated for six months at the utmost: he shall apply to the Pre- 
 siding Justice of said Tribunal, who, after having conferred with the 
 King's Attorney (Republic's Attorney), shall issue an order of arrest or 
 refuse it, and may in the former case reduce the time of the incarceration 
 asked for by the father." 
 
 378. "In either case there shall be no writing and no judicial proceed- 
 ings with the exception of the order of arrest itself, in which the reasons 
 shall not be stated. 
 
 "The father shall only be bound to sign an undertaking to pay 
 all the expenses and to furnish proper support." 
 
 Title Tenth is "Of Minority, of Guardianship, and of Emancipation."^ 
 
 The period of minority extends to the age of twenty-one years. A 
 father is administrator of the property of his minor children, and in 
 case of his death the mother is entitled to the guardiansliip. 
 
 391. "The father, nevertheless, may appoint a special counsel to the 
 surviving mother who is guardian, without whose advice she cannot take 
 any steps in connection with the guardianship. 
 
 "If the father specifies the purposes for which the counsel is appointed,, 
 the guardian shall be able to act in all other matters without his 
 assistance." 
 
 In case the mother remarries, her husband becomes joint guardian 
 with her. If father and mother be dead the grandparents are entitled 
 to the guardianship. 
 
 405. "When a child who is a minor and not emancipated shall be 
 without father or mother or guardian appointed by his father or mother 
 or male ascendants, and also when the guardian of one of the classes 
 above mentioned shall fall under one of the causes of exclusion hereafter 
 referred to, or shall have been duly excused, the appointment of the 
 guardian shall be made by the family council." 
 
 407. "A family council shall be composed, not counting the Justice 
 
CIVIL CODE OF FRANCE 1119 
 
 of the Peace, of six blood relatives, or relatives by marriage, chosen 
 as well in the country where the guardianship takes rise as within a 
 distance of two myria-meters, and one-half of such relatives shall be 
 on the paternal side and one-half on the maternal side, following the 
 order of proximity in each line. 
 
 A blood relative shall be referred to a relative by marriage of the 
 same degree; and among relatives of the same degree the older shall 
 be preferred to the younger." 
 
 409. "When the blood relatives or relatives by marriage in one or the 
 other line shall not be sufficiently numerous on the spot or within the 
 distance designated by article 407, the Justice of the Peace shall call 
 the blood relative or relatives by marriage domiciled at a greater distance, 
 or citizens of the country known to have had continuous relations of 
 friendship with the minor's father or mother." 
 
 410. "The Justice of the Peace may, even if there is a sufficient 
 number of blood realtives or relatives by marriage on the spot, allow 
 citations to be issued to blood relatives or relatives by marriage who 
 are of a nearer degree or of the same degree as the blood relatives 
 or relatives by marriage present, whatever may be the distance at which 
 they are domiciled. This, however, shall be done in such a way as 
 to omit some of the latter, and so that the number mentioned in the 
 foregoing articles shall not be exceeded." 
 
 412. "The blood relatives, relatives by marriage, or friends so called, 
 shall be bound to appear in person or to be presented by a special attorney. 
 
 An attorney-in-fact cannot represent more than one person." 
 
 416. "The family council shall be presided over by the Justice of the 
 Peace, who has a deliberative vote or a casting vote in case of division." 
 
 420. "In every case of guardianship there shall be an assistant guardian 
 appointed by the family council. 
 
 "His duties shall be to protect the interests of the minor when they 
 conflict with those of the guardian." 
 
 There are many provisions relating to exemption from service as 
 guardians and incapacity to act as such. The family council determines 
 the amount to be allowed as yearly expenses of the minor and of the 
 administration, and a sale or mortgage of real estate must be authorized 
 by the family council and approved by the Tribunal of First Instance. 
 The family exercises a general supervision over the guardian and the 
 guardian must furnish the assistant guardian statements of his accounts 
 when called for by the council. 
 
 476. "A minor is emancipated by right by his marriage." 
 
 477. "A minor, even unmarried, can be emancipated by his father^ 
 or in default of his father, by his mother, when he has reached the full 
 age of fifteen years. 
 
 "Such emancipation takes place upon the sole declaration of the father 
 or mother, received by the Justice of the Peace attended by his clerk." 
 
i'i20 APPENDIX 
 
 A minor who has no father or mother may be emancipated at eighteen 
 by the family council. 
 
 489. "A person of full age who is in a usual state of imbecility, in- 
 sanity or madness, shall be interdicted, even if such condition is 
 accompanied by lucid moments." 
 
 Application for interdiction is made to the Tribunal of First Instance. 
 
 494. "The Tribunal shall order the family council, composed in the 
 manner specified in section 4 of chapter II. of the Title of Minority, 
 of Guardianship and of Emancipation, to give its opinion on the condition 
 of the person whose interdiction is sought for." 
 
 After receiving this opinion the Tribunal examines the defendant and 
 decides the case. If the interdiction is allowed a guardian and an 
 assistant guardian are appointed in the same manner as in the case of 
 guardians of minors, and the interdicted person is assimilated to a 
 minor as to his person and property. Spendthrifts may be prohibited 
 from disposing of their property without the assistance of counsel 
 appointed by the Tribunal. 
 
 Book 2 treats "Of Property and of Different kinds of Ownership." 
 
 Real estate includes lands, buildings, crops till cut or gathered and 
 structures for use on the land. 
 
 524. "The things 'which an owner of a piece of property has placed 
 thereupon for the use or cultivation of such property are real estate 
 by destination. 
 
 "Thus, the following things are real estate by destination, when they 
 have been placed by the owner for the use and cultivation of th^ property : 
 
 Cattle used for farming purposes; 
 
 Farming implements ; 
 
 Seeds given to farmers or settlers paying rent in kind ; 
 
 Pigeons belonging to the pigeon house; 
 
 Warren rabbits; 
 
 Beehives ; 
 
 Fish in the ponds; 
 
 Wine presses, boilers, stills, vintage tubs and barrels; 
 
 The necessary implements for working ironworks, paper-mills and 
 other factories; 
 
 Straw and manure. 
 
 "All personal articles which the owner has placed upon the property to 
 remain there perpetually are also real estate by destination." 
 
 528. "Bodies which can move from one place to another, whether 
 they move themselves, such as animals, or whether they cannot move 
 without the assistance of extraneous power, such as inanimate things, 
 are personal property of nature." 
 
 Bonds, annuities and shares in financial, commercial and manufacturing 
 companies are personal property even though the company owns lands. 
 
CIVIL CODE OF FRANCE 1121 
 
 "Private individuals have the free disposal of what belongs to them 
 subject to the restrictions established by law." 
 
 The Second title of Book 2 is "Of Ownership," and defines the rights 
 of owners to what the thing produces and of a land owner to accretion 
 from alluvion. What is added imperceptibly belongs to the riparian 
 owner, and he loses what is imperceptibly washed away; but where a 
 considerable portion of a field, which can be identified, is moved across 
 or down a stream, the owner may claim or hold it within one year. 
 If a stream navigable for boats or rafts opens a new bed, abandoning 
 the old, the owners of the land occupied by the new bed take the old 
 way of compensation. 
 
 "When the right of accession applies to two movable things belonging 
 to two different owners, it is entirely governed by the principles of 
 natural equity." The rules given as examples generally give the thing 
 constructed from materials of two owners, or materials of one and labor 
 of another, to the one contributing the principal value with compensation, 
 to the other for what he has furnished. 
 
 Title Third is "Of Usufruct, of Use and Habitation." 
 
 582. "A usufructuary has the right to the enjoyment of all kinds of 
 fruits, whether natural, cultivated, or civil, which the thing of which he 
 has the usufruct can produce." 
 
 583. "Natural fruits are those which result from the spontaneous pro- 
 duction of the earth. The increase and young of cattle are also natural 
 fruits. 
 
 "Cultivated fruits of land are those obtained by cultivation." 
 
 584. "Civil fruits are the rents of houses, the interest on sums due,, 
 and payments of annunities. 
 
 "The prices of leases on shares are also included in the class of civil 
 fruits." 
 
 585. "Natural and cultivated fruits hanging from branches or standing 
 upon roots when the usufruct begins, belong to the usufructuary. 
 
 "Those which are in the same state when the usufruct comes to an 
 end belong likewise to the owner, without compensation from either 
 side for ploughing and sowing, but also without prejudice to the portion 
 of fruits which might belong to the settler paying in kind, if there was 
 such a settler at the beginning or at the termination of the usufruct."" 
 
 586. "Civil fruits are supposed to be gained day by day and belong 
 to the usufructuary in proportion to the duration of his usufruct. This 
 rule applies to the prices of leases on shares as well as to rents of houses 
 and other civil fruits." 
 
 587. "If a usufruct includes things which cannot be used without 
 being consumed, such as money, grain, liquors, the usufructuary has the 
 right to use them, but on condition of returning others in like quantity,, 
 quality and value, or their estimation at the end of the usufruct." 
 
1122 APPENDIX 
 
 A usufructuary may lease or assign his right to another. He may 
 continue to work mines already opened but not open new ones. The 
 usufructuary is bound to make ordinary repairs but not to rebuild or 
 reconstruct. Heavy repairs are to be made by the owner. The right 
 of the usufruct is forfeited by committing waste or allowing the property 
 to deteriorate for want of repairs. 
 
 625. "The right of use and habitation are acquired and lost in the 
 same manner as usufruct." 
 
 634. ''The right of habitation cannot be assigned or let." 
 
 Title Four is "Of Servitudes or Land Burdens." There are sixty- 
 four sections under this title dealing with the use of streams and 
 springs of water, party walls, ditches and hedges, the repair of buildings 
 where various floors belong to different owners, windows and rights 
 of way. This title is remarkably full and clear in its provisions with 
 reference to party walls and other works near or upon the boundaries 
 of land and is designed to facilitate the erection of buildings by the 
 owners of adjacent lots on the boundary with equal burdens to each 
 owner. 
 
 Book 3 is "Of the Different Ways of Acquiring Property." Title First 
 is "Of Successions" and deals at length with the inheritance of property. 
 
 745. "Children of their descendants inherit from their father and mother, 
 grandfathers and grandmothers, and other ascendants, without distinc- 
 tion of sex nor of primo-geniture, and even if they are born of different 
 marriages. 
 
 "They inherit in equal shares and "per capita" when they are all of 
 the first degree and inherit in their own right; they inherit "per stirpes" 
 when all or part of them take by representation." 
 
 746. "H a decedent has left no issue, or brothers or sisters or descend- 
 ants of them, the succession is divided in halves between the ascendants 
 of the paternal line and the ascendants of the maternal line. 
 
 "The ascendant who is of the nearest degree takes the half alloted to 
 his line to the exclusion of all others. 
 
 "The ascendants of the same degree inherit "per capita." 
 
 750. "In case of the previous decease of the father and mother of 
 a person who has died without issue, his brothers and sisters or their 
 decendants are called to the succession to the exclusion of the ascendants 
 or other collateral relatives. 
 
 "They inherit either in their own right or by representation, as is 
 provided in section 2 of the present chapter." 
 
 751. "If the father and mother of the person who has died without 
 issue have survived him, his brothers and sisters or their representatives 
 are only entitled to one-lialf of the succession. If only the father or 
 mother survives, they are entitled to take three-quarters." 
 
 752. "The division of the half or of the three-quarters belonging to 
 the brothers and sisters, according to the provisions of the previous 
 
CIVIL CODE OF FRANCE 1123 
 
 article, is made between them in equal portions if they are all of the 
 same marriage; if they are of different marriages the division is made 
 by halves between the two paternal and maternal lines of the decedent: 
 those of full blood take in both lines and those of the mother's and 
 those on the father's side each take in their line only; if there are 
 brotherg and sisters on one side only, they inherit the whole, to the 
 exclusion of all relatives in "the other line." 
 
 "Relatives beyond the twelfth degree do not inherit." 
 
 Natural children inherit from parents if lawfully acknowledged by 
 them but not from relatives of their parents. In case there are legitimate 
 children the natural child takes only one third of the portion he would 
 have had if legitimate. 
 
 'j(y'j. "When the decedent leaves no relatives of a degree entitling them 
 to inherit, and no natural children, the property of the succession be- 
 longs absolutely to the surviving husband or wife, not divorced and 
 against whom no judgment of separation from bed and board has 
 become final, 
 
 "The surviving husband or wife not divorced who does not inherit the 
 full ownership and against whom no judgment of separation from bed 
 and board has become final has upon the succession of the predeceased 
 wife or husband a right of usufruct which is: 
 
 "Of one-quarter, if the decedent leaves one or several children born of 
 the marriage; 
 
 "Of the smallest portion of a Igitimate child, which portion shall not 
 exceed one-quarter, if the decedent has children born of a previous 
 marriage ; 
 
 "Of one-half in all other cases, whatever may be the number and the 
 kind of heirs; 
 
 "The calculation shall be made upon a total composed of all the prop- 
 erty existing at the death of the decedent, to which shall be fictitiously 
 added the property which he has disposed of, either by instrument inter 
 vivos or by will, for the benefit of persons entitled to inherit, not exempt 
 from collation. 
 
 "But the surviving husband or wife can only exercise his or her right 
 against the property which the decedent has not disposed of by instrument 
 inter vivos or by will without prejudice to the rights to the reserve and 
 the rights of reversion. 
 
 "He or she shall cease to exercise this right if he or she has received 
 from the decedent advantages, even made iby preciput and above the 
 share, of which the amount reaches the proportion of the rights which 
 the present law grants to him or her, and if this amount is less, he or 
 she can only claim the balance of his or her usufruct. 
 
 "Until the final division, the heirs can, by giving sufficient security, 
 ask that the usufruct of the surviving husband or wife be changed into 
 
1124 APPENDIX 
 
 a corresponding annuity. If they disagree, the Tribunals may in their 
 discretion order this change. 
 
 "In case of a new marriage the usufruct of the husband or wife ceases 
 if there are descendants of the decedent." 
 
 768. "If there is no surviving husband or wife, the succession escheats 
 to the State." 
 
 A succession can be accepted absolutely, or under benefit of inventory, 
 or renounced by the heir. The effect of the benefit of inventory is to 
 relieve the heir from liability for the debts of the succession beyond 
 the value of the property inherited. Numerous sections relate to the 
 division of estates among heirs and the protection of the rights of 
 creditors. 
 
 843. "Every heir, even a beneficiary heir, coming into a succession 
 shall return to his co-heirs everything he has received from the decedent, 
 directly or indirectly, by donation intev vivos: he cannot keep the dona- 
 tions nor claim the legacies left to him by the decedent unless these 
 donations and legacies have been made to him expressly by preciput 
 and above his share or with exemption from collation." 
 
 852. "The expense of support, maintenance, tuition, apprenticeship, 
 the ordinary expenses of fitting out, those for weddings and usual gifts, 
 shall not be collated." 
 
 Provision is made in detail for collation in particular cases by 
 contribution or taking less of the estate. 
 
 870. "The co-heirs contribute among themselves to the payment of 
 the debts and liabilities of the succession, each one proportionately to 
 what he takes." 
 
 871. "A legatee under universal title contributes with the heirs pro 
 rata to what he takes, but a special legatee is not liable for the debts 
 and expenses, with the exception of the action upon a mortgage which 
 may lie against the real estate devised." 
 
 When division of an estate is made, the title of each to the part assigned 
 him is warranted by his co-heirs and in case of ejectment they must 
 indemnify him in proportion to their shares of the whole estate. "Divisions 
 of estates can be rescinded on account of violence or fraud." 
 
 Title Second is "Of Donations Inter Vivos and of Wills." 
 
 894. "A donation inter vivos is an act by which the donor divests himself 
 at the time and irrevocably of the thing given in favor of the donee, who 
 accepts it." 
 
 895. "A will is an instrument by which a testator disposes, for the 
 time when he will be no longer living, of the whole or part of his 
 property, and which he can revoke." 
 
 "Entails are prohibited. 
 
 "Every provision by which a donee, an heir appointed, or a legatee shall 
 be required to keep property and to return it to a third party shall be 
 void, even as against the donee, the heir appointed or the legatee. 
 
CIVIL CODE OF FRANCE 1125 
 
 "Nevertheless, property which is free and which forms part of the 
 endowment of a hereditary title which the King has created in favour 
 of a Prince or of the head of a family can be transmitted by way of 
 inheritance, as is provided by the Imperial Act of the 13th March, 1806, 
 and by the senatus consultum of the 14th August following."* 
 
 * (This change was repealed in 1849.) 
 
 Some exceptions are given however and this does not interfere with 
 giving the usufruct to one and the title to another. Adults of sound 
 mind may make donations or wills but, 
 
 905. "A married woman cannot make a donation inter vivos without 
 the special assistance or consent of her husband, or without having been 
 authorized by the Court in accordance with what is provided by articles 
 217 and 219 of the Title Of Marriage. 
 
 "She does not require the consent of her husband, nor the authorization 
 of the Court, to dispose of property by will." 
 
 913. "Advantages resulting from donations inter vivos or from wills 
 cannot exceed one-half of the property of the person who has made such 
 disposition, if he leaves one legitimate child at his death; one-third if 
 he leaves two children; one-fourth if he leaves three or a greater number." 
 
 Descendants of whatever degree are included as children and donation 
 cannot exceed half if the donor leaves ascendants in both lines and three- 
 fourths if he leaves them in one line. 
 
 916. "If there are no ascendants and descendants, advantages by dona- 
 tions inter vivos or by wills can exhaust all the property." 
 
 920. "'Donations, either inter vivos or mortis causa, which exceed the 
 portion of property which can be disposed of, shall be reduced to that 
 portion when the succession becomes open." 
 
 931. "All instruments containing a donation inter vivos shall be executed 
 before notaries in the ordinary form of contracts, and the original shall 
 remain with them, or otherwise such instruments shall be void." 
 
 A donation is not operative until accepted by a formal instrument. 
 
 939. "When a donation is made of property which can be mortgaged,, 
 the transcription of the deeds containing the donation and the acceptance 
 and notice of acceptance which might have taken place by a separate 
 instrument, shall be made at the bureau of mortgages in the District where 
 the property is situated." 
 
 953. "A donation inter vivos can only be revoked for non-execution of 
 the conditions under which it was made, on account of ingratitude, or if 
 children have been born to the person." 
 
 Revocations for ingratitude must be enforced by action and for the 
 specified cause. The grounds of revocation are, seeking to take the life 
 of the donor, cruelty toward him, the commission of a felony or serious 
 wrong, or refusal to give the donor support. 
 
 967. "Every person can dispose of his property by will, either in the 
 
1126 APPENDIX 
 
 form of an appointment of an heir or of the making of a legacy or under 
 any other denomination sufficient to express his wish," 
 
 969. "A will can be holographic, or can be made as a public instrument, 
 or in the mystic form." 
 
 970. "A holographic will shall not be valid unless it is wholly written, 
 dated, and signed, in the hand of the testator. It is not subject to any 
 other formality." 
 
 971. "A will made in the public form shall be received by two notaries 
 in the presence of two witnesses, or by one notary in the presence of 
 four witnesses." 
 
 972. "If a will is received by two notaries, it shall be dictated by the 
 testator and shall be written out by one of the notaries as it is dictated. 
 
 If there is only one notary, it shall also be dictated by the testator and 
 written out by such notary. 
 
 In both cases it shall be read over to the testator in the presence of the 
 witnesses. 
 
 AH of which shall be expressly mentioned." 
 
 976. "When a testator desires to make a mystic or secret will, he shall 
 be obliged ,to sign the instrument, whether he has written it himself or 
 whether he has caused it to be written out by another person. The paper 
 containing his will, or the paper used as an envelope, if there is one, 
 shall be closed and sealed. The testator shall present it thus closed and 
 sealed to the notary and to six witnesses at least, or he shall have it 
 closed and sealed in their presence; and he shall declare that the contents 
 of this paper are his will, written and signed by him, or written out by 
 another person and signed by him : the notary shall draw up a certificate 
 of superscription which shall be written out on this paper, or on the sheet 
 used as an envelope; such certificate shall be signed as well by the testator 
 as by the notary, and also by the witnesses. All of which shall be done 
 without interruption and without attending to other business ; and in case 
 the testator should not be able to sign the certificate of superscription, 
 owing to a cause having arisen since the signing of the will, the declaration 
 which he makes thereof shall be mentioned, and in such case it shall not 
 be necessary to increase the number of witnesses." 
 
 Soldiers and sailors may execute wills before certain officers designated, 
 and citizens on voyages at sea or in foreign parts may make them before 
 witnesses in the forms pointed out. Very full provisions are made with 
 reference to the distribution of legacies, the appointment of executors 
 and the form and effect of marriage contracts. 
 
 1091. "Husband and wife may, by their marriage contract, make to' 
 each other, reciprocally or the one to the other, such donations as they 
 may deem proper, subject to the rules hereafter expressed." 
 
 1094. "The husband or wife may, either by the marriage contract or 
 during the marriage, in case he or she leaves no children or descendants, 
 dispose in favour of the other in full ownership of all which he or she 
 
CIVIL CODE OF FR.^NCE 1127 
 
 could dispose of in favor of a stranger, and besides, of the usufruct of 
 the whole portion of which the law does not allow the disposal to the 
 detriment of heirs. 
 
 "And in case the husband or wife who is the donor leaves children or 
 descendants, he or she may give to the other either a quarter in full owner- 
 ship, and the usufruct of another quarter, or only the usufruct of one half 
 of all his or her property." 
 
 The subject of succession, donations and wills covers eighty-three pages 
 of the code or nearly one-sixth of the whole. 
 
 Title Third is "Of Contracts or Conventional Obligations in General." 
 It covers one hundred and nine pages and is in main a clear statement 
 of the law of contracts generally recognized by all commercial people, 
 though some of its provisions are peculiar. The first two chapters give 
 definitions of various kinds of contracts and conditions essential to a valid 
 contract. 
 
 1 134. "Contracts lawfully entered into take the place of the law for 
 those who have made them. 
 
 "They cannot be cancelled unless it is by mutual consent or for causes 
 allowed by law. 
 
 'They must be performed in good faith." 
 
 1 142. "Every obligation to do or not to do resolves itself in damages 
 in case of non-performance on the part of the debtor." 
 
 1 149. "The damages due to the creditor are generally for the loss which 
 he has made or the profit which he has been deprived of, subject to the 
 exceptions and restrictions hereinafter contained." 
 
 1 1 52. "When the agreement provides that the party who fails to perform 
 it shall pay a certain amount of damages, no larger or smaller amount can 
 be awarded to the other party." 
 
 1 1 53. "In the obligations which are limited to the payment of a certain 
 sum, the damage resulting from delay in the performance shall only consist 
 in a judgment for the interest allowed by law, subject to the special 
 rules applying to commerce and to security. 
 
 "These damages are due without the creditor being obliged to show any 
 loss. 
 
 "They are only due from the day of the demand, except in the 
 cases in which the law makes them run as a matter of right." 
 
 1 156. "The common intention of the contracting parties should be sought 
 in contracts rather than taking the literal meaning of the words." 
 
 Various sorts of conditions are defined and the rights and liabilities 
 of parties to joint and several, divisible and indivisible contracts are stated 
 in accordance with principles of equity. 
 
 1235. "Every payment supposes a debt ; what has been paid without being 
 due is subject to be reclaimed. 
 
 "One is not allowed to reclaim payment in case of natural obligations 
 which have been voluntarily paid." 
 
1 128 APPENDIX 
 
 1236. "An obligation can be paid by any person who has no interest 
 therein, provided such party acts in the name of and for the purpose 
 of releasing the debtor, or if he acts in his own name, provided he is 
 not subrogated to the rights of the creditor." 
 
 1237. "The obligation to do a thing cannot be satisfied by a third party 
 against the wish of the creditor, when the latter is interested in having it 
 fulfilled by the debtor himself." 
 
 1249. "Subrogation to the rights of a creditor for the benefit of a third 
 person who pays his is either conventional or legal." 
 
 "1250. "Such subrogation is conventional: 
 
 "i. When the creditor receiving payment from a third person subrogates 
 him to his rights, actions, privileges or mortgages against the debtor: such 
 subrogation must be express and made at the same time as the payment ; 
 
 "2. When the debtor borrows a suni for the purpose of paying his debt 
 and of subrogating the lender to the rights of the creditor. In order 
 that such a subrogation should be valid, it is necessary that the instrument 
 by which the loan is made and the receipt thereof should be drawn up 
 before notaries; that in the instrument for the loan it shall be declared 
 that the sum has been borrowed to make the payment, and that in the 
 receipt it shall be declared that the payment has been made with the 
 moneys furnished for that purpose by the new creditor. Such subrogation 
 takes place independently of the wish of the creditor." 
 
 1251. "Subrogation takes place by right: 
 
 "i. For the benefit of the person who, being himself a creditor pays 
 another creditor, who is preferred to him on account of his privileges 
 or mortgages; 
 
 "2. For the benefit of the purchaser of a piece of real estate who applies 
 the price of his purchase to the payment of the creditors to whom this 
 hereditament was mortgaged; 
 
 "3. For the benefit of the person who, being bound with others or for 
 others to the payment of the debt, had an interest in satisfying it; 
 
 "4. For the benefit of the heir with benefit of inventory who has paid 
 with his moneys the debts of the succession." 
 
 A debtor has the right to appropriate his payment to such debt as he 
 means to discharge and may relieve himself from an obligation by a 
 tender and "consignation," that is a deposit of the thing tendered and 
 notice of the time and place of making the deposit. 
 
 1265. "An assignment of property is the abandonment made by a debtor 
 of all his property in favour of his creditors when he finds himself unable 
 to pay his debts." 
 
 1266. "A voluntary assignment of property is one which creditors accept 
 voluntarily and which has no other effect than the one resulting from the 
 very conditions of the contract entered into between them and the debtor." 
 
 1268. "A judicial assignment is an advantage which the law grants to a 
 debtor who has been unfortunate and has acted in good faith; he is 
 
CIVIL CODE OF FRA/NCE 1129 
 
 allowed to make in court to his creditors the abandonment of all his 
 property, notwithstanding any stipulation to the contrary, for the purpose 
 of securing the liberty of his person." 
 
 1270. "Creditors cannot refuse a judicial assignment outside of the 
 cases excepted by law. 
 
 "The assignment carries with it the release of the execution against the 
 person. 
 
 "Otherwise, it only releases the debtor to the extent of the value of 
 the property abandoned; and in case such property is insufficient, if he 
 acquires more property he is obliged to abandon it until full payment has 
 been made." 
 
 1271. "Novation takes place in three ways : 
 
 "j. When the debtor contracts towards his creditors a new debt which 
 is substituted for the old one, and extinguishes it; 
 
 "2. When a new debtor is sustained for the old one, who is released 
 by the creditor; 
 
 "3. When, owing to a new agreement, a new creditor is sufbstituted for 
 the old one, as to whom the debtor is released." 
 
 1282. "A voluntary surrender of an original instrument under private 
 signature by a creditor to a debtor is proof of release." 
 
 Various rules of evidence of contracts and payments are stated. 
 Written instruments are classified as public, made by a public officer, or 
 private, made by the parties. 
 
 1326. "A note or a promise under private signature by which a single 
 party binds himself to another to pay a sum of money or an appreciable 
 thing, must be wholly written in the hand of the person who signs it, 
 or at least, it is necessary that, besides his signature, he should have 
 written in his own hand Good for, or Approved, with the sum or the 
 quantity of the thing written out in full; 
 
 "Except in case the instrument emanates from traders, workmen, farm 
 laborers, vine-dressers, laborers hired by the day, and servants." 
 
 1329. "The books of merchants shall not be taken as proof against 
 persons who are not traders for the articles therein mentioned, with the 
 exception of what is stated with respect to oaths." 
 
 ^330. "The books of merchants shall be held as proof against themselves, 
 but the person who wishes to derive an advantage from them cannot 
 divide them as to the contents which may be in opposition to his claim." 
 
 1341. "It shall be necessary to execute an instrument drawn up in the 
 presence of notaries or made under private signature for all things of 
 which the sum or value exceeds one hundred and fifty francs, even in 
 case of a voluntary deposit, and no proof of witnesses in favour or against 
 the contents of the instrument, nor as to what is alleged to have been 
 said previously, at the time, or since the making of the same, shall be 
 allowed, even if the sum or value in dispute is less than one hundred and 
 fifty francs : 
 
II30 APPENDIX 
 
 "All of which is without prejudice to what is mentioned in the laws 
 relating to commerce." 
 
 1357. "Judicial oaths are of two kinds : 
 
 "i. Those which one of the parties proffers to the other to make the 
 judgment in the case depend upon them. They are called decisive oaths; 
 
 "2. Those which are proffered by the Judge of his own accord to either 
 of the parties." 
 
 1358. "A decisive oath can be proffered in all kinds of controversies 
 whatsoever." 
 
 1359- "It can only be proffered with respect to a fact which is personal 
 to the party to whom it is proffered." 
 
 1360. "It can be proffered at all stages of the case, and even if there 
 does not exist a commencement of proof of the claim, or of the exception 
 in connection with which it is proffered." 
 
 1361. "A person to whom an oath is proffered and who refuses to take 
 it, or who does not consent to have it taken by his opponent, or an 
 opponent to whom it has been left to take the oath and who refuses to 
 take it, shall be defeated in his claim or in his exception." 
 
 1366. "A Judge may proffer an oath to one of the parties, either to 
 make the decision of the case result from it, or only to fix the amount 
 of the judgment." 
 
 1367. "A Judge can only of his own accord proffer an oath, either 
 upon the claim or upon the exception set up, under the two following 
 conditions; it is necessary: 
 
 "i. That the claim of the exception should not be fully established: 
 
 "2. That it should not be wholly without proof, 
 
 "Outside of these two cases the Judge must either admit or reject the 
 claim absolutely." 
 
 1371- "Quasi-contracts are the purely voluntary acts of an individual 
 from which a certain agreement results in favour of a third party, and 
 sometimes a reciprocal agreement between two parties." 
 
 1377. "When a person thought by mistake he owed a debt and has paid 
 it, he has the right to claim it back from the creditor. 
 
 "Nevertheless, this right ceases in' case the creditor has suppressed his 
 written proof in consequence of the payment, subject to the remedy of 
 the person who has paid against the real debtor." 
 
 1383. "Every one is responsible for the injury which he has caused 
 not only owing to his own act, but owing to his negligence or his 
 imprudence." 
 
 Father and mother are liable for injuries caused by their minor children; 
 masters and employers for those by their servants, and schoolmasters and 
 mechanics for those of their pupils^ and apprentices. 
 
 1385. "The owner of an animal, or the person who uses it while he has 
 the use of it, is liable for the injuries which the animal has caused, whether 
 the animal was under his care or whether it was lost or got loose." 
 
CIVIL CODE OF FRAXXE 1131 
 
 1386. "The owner of a building is responsible for the injuries caused 
 by its destruction when such destruction has taken place owing to his 
 not keeping it in good order or owing to bad construction," 
 
 Title Fifth is "Of Marriage Contracts and the respective rights of 
 husband and wife." 
 
 1387. "The law only regulates conjugal relations with respect to prop- 
 erty when there is no special agreement, but the husband and wife may 
 enter into any agreement they deem proper, provided it is not contrary 
 to good morals, and besides, is subject to the following restrictions." 
 
 1388. "A husband and wife cannot derogate from the rights resulting 
 from the husband's marital powers over the person of the wife and 
 of the children or which belong to the husband as head of the family, 
 nor from the rights conferred upon the survivor of the husband or 
 wife under the Title Of Paternal Authority and the Title Of Minority, 
 of Guardianship and of Emancipation, nor from the prohibitory 
 provisions of the present code." 
 
 1389. "They cannot make any agreement or renunciation of which the 
 object would be to change the legal order of succession, either with 
 respect to themselves in the succession of their children or descendants 
 or with respect to their children among themselves; without prejudice 
 to the donations inter vivos or mortis causa which may be made according 
 to the manner and in the cases provided for in the present Code." 
 
 They may in a general manner declare that they intend to marry 
 under the system of community or under the dotal system. Community 
 property includes all personal property of the parties owned at the time of 
 the marriage and all real and personal property acquired afterward. 
 It does not include the real property owned by either at the time of 
 marriage. The community is liable for the debts of each existing at 
 the time of the marriage, but such as are liens on the lands of one 
 of them are chargeable against his or her share. Lands donated to or 
 inherited by one during the marriage do not belong to the community, 
 nor do those taken in exchange for the property of one of them. The 
 community is liable for all personal debts of each existing at the time 
 of the marriage, for all subsequently contracted by the husband or by 
 the wife with his consent and for all family expenses. 
 
 1421. "The husband has the sole management of community property. 
 "He can sell, convey, and mortgage it without the co-operation of his 
 
 wife." 
 
 1422. "He cannot dispose inter vivos of the real estate belonging to 
 the community, nor of the whole or part of the personal property, with- 
 out consideration, unless it is for the establishment of children of the 
 marriage. 
 
 "Nevertheless, he may dispose, without consideration and specifically, 
 of the personal property in favour of all persons, provided he does not 
 retain the usufruct for himself." 
 
1132 APPENDIX 
 
 The husband also has the management of the individual property 
 of the wife. 
 
 1441. "The community is dissolved: 
 
 1. By natural death; 
 
 2. By civil death; 
 
 3. By divorce; 
 
 4. By separation from bed and board; 
 
 5. By separation of property." 
 
 1453. "After the dissolution of the community the wife or her heirs 
 and legal representatives have the right to accept or renounce it: any 
 agreement to the contrary is void." 
 
 1454. "A wife who has interfered with the property of the community 
 cannot renonunce the community. 
 
 "Acts of pure administration or preservation do not amount to an 
 interference." 
 
 After the dissolution of the community husband and wife must each 
 return to the community such property or sums as they owe by way 
 of compensation for encumbrances discharged or to endow a child, and 
 may take out individual property and the price of his or her real estate 
 sold and used for the community. The surplus after payment of debts 
 is then divided equally between husband and wife. A wife is only 
 liable for the debts of the community to the extent of her share of 
 the community property. The husband is liable for all debts contracted 
 by him, but only for one half the personal debts of the wife. 
 
 1492. "The wife who renounces loses all her rights to the property 
 of the community and even to the personal property which has become 
 part of it through her. 
 
 "She only takes back the clothes and linen for her own use." 
 
 1493. "The wife who renounces has the right to take back: 
 
 "i. The real estate belonging to her when it exists in kind, or the 
 real estate which has been purchased as a reinvestment; 
 
 "2. The proceeds of the real estate belonging to her which has been 
 conveyed and for which a reinvestment has not been made and accepted 
 as above stated; 
 
 "3. All the indemnities which may be due to her by the community." 
 
 The husband and wife may modify legal community by all sorts of 
 agreements not forbidden by law. This includes the right to give the 
 survivor the whole of the property or to assign to each or his or her 
 heirs such unequal share as may be agreed on. 
 
 1536. "When the husband and wife have stipulated in their marriage 
 contract that there would be a separation of property between them, 
 the wife retains the entire management of her personal property and 
 real estate and the free enjoyment of her income." 
 
 1537- "The husband and wife each contribute to the household ex- 
 penses according to the conditions in their contract; and if there are 
 
CIVIL CODE OF FRANCE 1133 
 
 none in relation thereto, the wife contributes to those expenses to the 
 extent of one third of her income." 
 
 1538. "The wife cannot in any case, nor in consequence of any agree- 
 ment, convey her real estate without the express consent of her husband, 
 or in case of his refusal, without being authorized by the Court. 
 
 "Any general consent given to the wife to convey her real estate, 
 either by marriage contract or since then, is void." 
 
 Chapter III is entitled "Of Dotal System." 
 
 1540. "Dowry under this system, as well as under the one provided 
 hy Chapter II, is the property which the wife brings to the husband 
 to bear the household expenses." 
 
 1541. "Everything the wife sets apart, or which is given to her by 
 marriage contract, is dotal unless there is an agreement to the contrary." 
 
 The husband has the management of the dotal property, but the mar- 
 riage contract may give the wife a right to collect a part of her income 
 on her own receipt. Real estate given as dowry cannot be conveyed 
 or mortgaged during the marriage, except for the establishment of 
 the wife's children or when it is necessary to release husband or wife 
 from prison, furnish support for the family, or make heavy repairs, 
 •or to effect a division or pay the debts of the donor contracted previous 
 to the marriage. 
 
 1557. "Dotal real estate may be conveyed when the marriage contract 
 allows the conveyance thereof." 
 
 1562. "A husband, with respect to dotal property, is subject to all 
 the obligations of a usufructuary. 
 
 "He is liable for all prescriptions which have taken- effect and for 
 any waste resulting from his negligence." 
 
 On the dissolution of the marriage the wife is entitled to the dotal 
 property if she survives, and her heirs take it in case of her death, 
 
 1574. "All the property of the wife which has not been included in 
 the settlement of dowry is paraphernal." 
 
 1575. "If all the wife's property is paraphernal, and if there are no 
 provisions in the contract to make her contribute to a part of the 
 household expenses, the wife contributes thereto to the extent of one- 
 third of her income." 
 
 1576. "The wife has the management and enjoyment of her paraphernal 
 property. 
 
 "But she cannot convey it or appear in court in connection with the 
 same without the consent of her husband, or upon his refusal, without 
 the authorization of the Court." 
 
 When the marriage is under the dotal system the parties may agree 
 to a partnership in after acquired property. The subject of marriage 
 contracts and rights of husband and wife is given great prominence 
 and occupies forty-eight pages of this code, while in the statutes of 
 England and the states of the American Union very little space is devoted 
 to it. 
 
1 134 APPENDIX 
 
 The Sixth Title of the third book treats of sales. The rules given; 
 are in main merely clear statements of the generally accepted principles 
 applicable to sales of property. There are some peculiar provisions 
 however. 
 
 1626. "Although no stipulation as to warranty has been made upon 
 the sale of property, the vendor is in duty bound to warrant the pur- 
 chaser against the ejectment which he is subject to from the whole 
 or part of the property sold or against the alleged charges upon such 
 property which have not been declared at the time of the sale." 
 
 1627. "The parties may, by special agreement, add to this obligation^ 
 which exists by right, or reduce its effect: they may even agree that the 
 vendor shall not be subject to any warranty." 
 
 1641. "A vendor is bound to warrant against the hidden defects of 
 the thing sold which render it unfit for the use for which it was 
 intended, or which impair its use to such an extent that the purchaser 
 would not have acquired it or would only have given a smaller price 
 if he had known of them." 
 
 1642. "A vendor is not responsible for the apparent defects as to- 
 which the purchaser has been able to satisfy himself." 
 
 1654. "If the purchaser does not pay the price, the vendor may ask 
 for the cancellation of the sale." 
 
 1659. "The right of redemption or repurchase is a covenant by which 
 the vendor retains the power of taking back the thing sold by returning 
 the purchase price and reimbursing what is specified in article 1673." 
 
 1660. "The right of redemption cannot be stipulated for a period 
 exceeding five years. 
 
 "If it has been stipulated for a longer time it is reduced to that period." 
 
 1674. "If the vendor has suffered a loss of more than seven-twelfths 
 of the price of real estate, he has the right to apply for the rescission 
 of the sale, even if he has expressly renounced in the contract the right 
 to ask for such rescission and has declared that he abandoned any 
 increase in the value." 
 
 1683. ''Rescission for leison does not take place in favour of the 
 purchaser." 
 
 1689. "In an assignment of a claim, of a right, or of an action against 
 a third party the delivery takes place between the assignor and the 
 assignee by handing over the instrument." 
 
 1682. "The sale or assignment of a claim includes the accessories 
 of the claim, such as the security, the privileges and mortgages." 
 
 1693. "A person who sells a claim or any other incorporeal right 
 must warrant its existence at the time of the assignment, though no 
 warranty has been stipulated." 
 
 1699. "A person against whom a contested claim has been assigned 
 can cause himself to be released therefrom by the assignee by reim- 
 bursing to him the actual price of the assignment, with the expenses 
 
CIVIL CODE OF FRANCE 1135 
 
 and just charges and interest, from the day the assignee paid the 
 price of the assignment made to him." 
 
 The Seventh Title is "Of Exchanges." 
 
 1700. "Rescission on account of lesion does not take place in contracts 
 of exchange." 
 
 1707. "All the other rules set down for contracts of sale shall moreover 
 apply to exchanges." 
 
 Title Eighth is "Of Contracts of Letting." 
 
 1713. "One may let all kinds of personal property or real estate." 
 
 17 14. "Letting can be done in writing or verbally." 
 
 1717. "The lessee has the right to sublet or even to assign his lease 
 to another person if this right has not been taken away from him. 
 
 "It can be taken away wholly or in part. 
 
 "This clause is always necessary." 
 
 1719. "A lessor is bound by the nature of the contract and without any 
 special stipulation being required: 
 
 1. "To deliver to the lessee the property leased; 
 
 2. "To keep the property in good order so that it can be applied to the 
 use for which it has been let; 
 
 3. "To secure to the tenant the peaceful enjoyment thereof during the 
 continuance of the lease." 
 
 1728. *'A lessee is bound to two principal obligations : 
 
 1. To make usfc of the property leased as a prudent owner, and ac- 
 cording to the purposes intended by the lease, or according to those 
 presumed under the circumstances if there is no agreement to that effect; 
 
 2. "To pay the price of the lease at the times agreed upon." 
 ^733- "He is responsible in case of fire unless he proves: 
 
 "That the fire has taken place by accident or superior force or owing 
 to bad construction; 
 
 "Or that the fire has spread from a neighboring house." 
 
 1763. "A person who cultivates land under condition of a division of 
 the revenue with the lessor cannot sub-let or assign his lease unless such 
 power has been expressly granted to him therein." 
 
 1764. "In case of violation of such a condition, the owner has the 
 right to re-enter into possession and the lessee shall be ordered to 
 pay the damages resulting from the non-performance of the lease." 
 
 1769. "If the lease is made for several years and during the lease the 
 whole or at least the half of a crop has been destroyed accidentally, 
 the farmer can ask for a reduction of the price of the lease unless his 
 loss is made up by previous crops. 
 
 "If the loss has not been made up, an appraisal of the reduction can 
 only be made at the end of the lease, at which time an average shall 
 be taken of all the years of his occupancy. 
 
 "Nevertheless, the judge may temporarily exempt the lessee from paying 
 a part of the price in consequence of the loss he has sustained." 
 
1 136 APPENDIX 
 
 1770. "If the lease is only for one year and the loss is of the whole 
 crop or at least of one-half, the lessee shall be released from the payment 
 of a proportionate part of the price of the lease. 
 
 He cannot claim any reduction if the loss is less than one-half." 
 
 Under this title are also included contracts for personal service. A 
 person can only bind himself to serve for a certain time or special 
 enterprise. Where no time is fixed, either party may terminate the service 
 at pleasure. The Code Napoleon contains the following; 
 
 1781. "A master shall be believed upon his affirmation: 
 
 "As to the amount of the wages; 
 
 "As to the payment of the salary for the year elapsed; 
 
 "And as to the instalments paid for the current year." 
 
 But this was repealed in 1868. 
 
 Common carriers are subject generally to the same liabilities as inn- 
 keepers for property intrusted to them and are responsible for its loss 
 unless occasioned by accident or superior force. Workmen entrusted 
 with materials are liable for losses resulting from their negligence, and 
 lose labor and materials furnished by them where the property is 
 accidentally destroyed before notice that the article is ready for delivery. 
 
 1792. "If the building constructed for a given price is destroyed, wholly 
 or in part, owing to bad construction or even to some defect of the 
 soil, the architect and the contractor are responsible for ten years." 
 
 1794. "An employer may of his own accord cancel, a job which has 
 been undertaken, even if the work has been already commenced, by 
 compensating the contractor for all his expenses, his work and all he 
 might have earned in such enterprise." 
 
 1795. "A contract for the letting of work expires by the death of the 
 workman, the architect or the contractor." 
 
 Chapter 4 of this title relates to leases of cattle. Where there is a 
 simple lease on equal shares, if all the cattle die the loss falls on the 
 lessor, if only part the loss is divided. 
 
 181 1. "It cannot be agreed: 
 
 "That the lessee shall bear the total loss of the cattle, although it 
 occured by accident and not through his negligence; 
 
 "Or that he shall bear a larger part of the losses than of the profits : 
 
 "Or that the lessor, at the end of the lease, shall be entitled to some- 
 thing more than the cattle have produced. 
 
 "i\ny agreement of this kind is void. 
 
 The lessee has the sole benefit of the milk, the manure, and the labour 
 of the cattle leased. 
 
 "The wool and the growth of the cattle are divided." 
 
 Other forms of letting cattle on shares and in connection with leases 
 of farms are provided for. 
 
 Title Ninth is "Of Contracts of Patnership." 
 
 1834. "Every partnership must be made in writing, if it is for an 
 object of which the value exceeds one hundred and fifty francs. 
 
CIVIL CODE OF FRANXE 1137 
 
 "No oral testimony shall be admitted against or beyond the contents 
 of the articles of co-partnership, nor as to what might be alleged to have 
 been said previously to the same or at the time therefor or since then, 
 even in case of a sum or value less than one hundred and fifty francs." 
 
 Partnerships are divided into general and particular. General part- 
 nerships include those by which all of the property of the partners 
 and the profits therefrom are placed in common and those where the 
 earnings of the parties by their work are in common. 
 
 1841. "A particular partnership is one which only applies to certain 
 specified things or to their use or to the revenue to be gathered therefrom.'* 
 
 1842. "A contract by which several persons become partners, either for 
 a specified enterprise or for carrying on a trade or profession, is also 
 a particular partnership." 
 
 1850. "Each partner is liable to the partnership for the damages 
 occasioned by his negligence, and he cannot offset such damages against 
 the profits which his work has brought him in connection with other 
 business." 
 
 Most of the other rules accord with the general principles ordinarily 
 recognized as to the rights and obligations of partners. When the shares 
 of profits and losses are not fixed by contract they are divided in 
 proportion to the capital contributed by each. When one partner is given 
 the management by the articles of partnership he may act notwithstand- 
 ing the objections of his partners, but in partnerships not commercial 
 the partners are not liable for the debts jointly but only for their equal 
 shares. The rules with reference to the dissolution of partnerships are 
 similar to those of the common law. 
 
 Title Tenth is "Of Loans." 
 
 A loan of a thing for use and return to the owner is called a 
 commodatum. The borrower is liable for its loss or injury due to his 
 fault, but not otherwise. Loans for consumption lare contracts by 
 which the specified property is to be consumed and the same kind and 
 quantity returned. The borrower becomes the owner and any loss falls 
 on him. In case return of like property cannot be made the borrower 
 must pay the value at the time when and place where the thing was to be 
 returned. 
 
 Title Eleventh is "Of Deposits and Sequestration." 
 
 1924. "When a deposit, being for more than one hundred and fifty 
 francs, is not established by a writing, the person who is attacked as 
 depositary is believed on his declaration, either as to the fact itself of 
 the deposit, or the thing which formed the object thereof, or as to the fact 
 of its restitution." 
 
 1927. "A depositary must bestow the same care in watching over 
 the thing which is deposited as he bestows upon the things which belong 
 to him." 
 
 1929. "A depositary is not in any case answerable for the accidents 
 
1 138 APPENDIX 
 
 resulting from superior force, unless notice has been given to him to 
 return the thing deposited." 
 He must return the identical thing deposited. 
 
 1949, "An obligatory deposit is one which was compulsory owing to 
 some accident, such as a fire, complete destruction, pillage, shipwreck, 
 or other unforeseen levents." 
 
 1950. "Proof by witnesses is allowed in case of an obligatory deposit 
 even if the amount involved exceeds one hundred and fifty francs." 
 
 1952. "Innkeepers or hotelkeepers are responsible as depositaries for 
 the effects brought by the traveller who is stopping with them; a deposit 
 of such kinds of effects shall be considered as an obligatory deposit." 
 
 They are responsible for thefts of the effects of travelers, but not for 
 robberies or taking by superior force. 
 
 1955- "Sequestration is either conventional or judicial." 
 
 1956. "Conventional sequestration is a deposit made by one or several 
 persons of a thing in dispute in the hands of a third party who binds 
 himself to return it after the controversy is over to the person who shall 
 obtain it by judgment." 
 
 1961. "Sequestration may be ordered by a Court: 
 
 1. In case of personal property of a debtor which has been attached; 
 
 2. In case the ownership or possession of real estate or personal 
 property is in dispute between two or more persons; 
 
 3. In case the debtor offers certain things for his release." 
 
 Title Twelfth is "Of contingent Contracts." These are classified as : 
 Insurance Contracts, Loans on Bottomry, Gaming and Betting and 
 Annuities. 
 
 1965. "The law does not grant any action for a gaming debt or for 
 the payment of a bet." 
 
 . 1966. "Games which tend to promote skill in the use of arms, races 
 on foot or on horseback, tennis and other games of the same kind which 
 develop skill and promote physical exercise, are excepted from the fore- 
 going provisions. 
 
 "Nevertheless the Tribunal can dismiss the case when the sum seems 
 excessive." 
 
 1967. "In no case can the loser claim back what he has voluntarily paid, 
 unless there has been fraud, deceit or swindling on the part of the winner." 
 
 1968. "An annuity may be granted for a consideration in money, or 
 for an article of personal property of some value, or for real estate." 
 
 1969. "It can also be granted, without consideration, by donation 
 inter vivos, or by will. It must then be made in the form provided by 
 law." 
 
 1971. "An annuity may be made either in favour of the person who 
 furnishes the value thereof, or in favour of a third party who only has 
 a right of enjoyment of the same." 
 
CiVIL CODE OF FRANXE, 1139 
 
 Title Thirteenth is "Of Powers of Attorney." 
 
 1985. "A power of attorney can be given either by a public instrument 
 •or by a writing under private signature, even by letter. It can also be 
 given verbally : but the proof thereof by witness is only admitted in 
 accordance with the Title Of Contracts, or Conventional Obligations in 
 General. 
 
 "The acceptance of the power may only be tacit, and result from the 
 acting thereunder of the attorney-in-fact." 
 
 1991. "An attorney-in-fact is bound to carry out the power, so long 
 as he has charge of acting under it, and he is responsible for the dam- 
 ages which might result from his failure to act. 
 
 "He is also bound to finish a matter commenced at the death of the 
 principal if delay would be prejudicial," 
 
 1902. "An attorney-in-fact is answerable not only in case of fraud, 
 but also for negligence in his management. 
 
 "Nevertheless, the responsibility in case of negligence is enforced less 
 rigorously against a person who has acted without compensation under 
 a power than against one receiving a salary." 
 
 1998. "A principal is bound to carry out the engagements contracted 
 by the attorney-in-fact in accordance with the power which he has 
 given him. 
 
 "He is only bound for what may have been done beyond it in case of 
 his express or tacit ratification." 
 
 2003. "A power of attorney expires by the revocation of the attorney- 
 in-fact ; 
 
 By his renunciation of the power; 
 
 By the natural or civil death, the interdiction or the insolvency either 
 of the principal or of the attorney-in-fact." 
 
 Title Fourteenth is "Of Security." 
 
 2011. "A person who answers as surety for an obligation undertakes 
 with respect to the creditor to satisfy this obligation if the debtor does 
 not satisfy it himself." 
 
 2013. "The security cannot exceed what is due by the debtor, nor be 
 given under more rigorous conditions. 
 
 It can be given for a part of the debt, and under less rigorous conditions. 
 
 "The security which exceeds the debt or which is given under more 
 rigorous conditions is not void: it shall only be cut down to the amount 
 of the principal obligation." 
 
 2021. "A surety is only bound towards the creditor to pay him if the 
 debtor fails to do so, and the latter's property must previously be seized, 
 unless the surety has renounced the benefit of seizure, or unless he has 
 bound himself jointly and severally with the debtor ; in which case the 
 effects of his undertaking are regfllated by the principles which have been 
 established for debts jointly and severally due." 
 
II40 APPENDIX 
 
 But the creditor is only bound to seize the property of the principal 
 when the surety demands it, points out the property and advances the 
 costs. 
 
 2029. **A surety who has paid the debt is subrogated to all the rights 
 which the creditor had against the debtor." 
 
 2032. "A surety even before he has paid, can proceed against the 
 debtor to be indemnified : 
 
 1. When such surety has been sued in court for payment; 
 
 2. When the debtor has become a bankrupt, or is insolvent; 
 
 3. When the debtor has undertaken to give him a release at the end 
 of a certain time; 
 
 4. When the debt has become due by the expiration of the time for 
 which it had been contracted ; 
 
 5. At the end of ten years, when no time has been specified for the 
 expiration of the principal obligation, unless the same is of such a nature 
 as not to expire before a fixed time, such as a guardianship." 
 
 2033. "When several persons have become sureties for the same 
 debtor upon the same debt, the surety who has paid the debt has a claim 
 against all the other sureties for the share and portion of each of them. 
 
 But this claim only exists when the surety has paid in one of the cases 
 mentioned in the foregoing article." 
 
 2037. "A surety is released when subrogation to the rights, mortgages 
 and privileges of the creditor can no longer take place in favour of the 
 surety owing to an act of such creditor." 
 
 2039. "A simple extension granted by a creditor to the principal 
 debtor does not release the surety, who may in such case proceed against 
 the debtor to compel him to pay." 
 
 Title Fifteenth is "Of Compromises." 
 
 2044. "A compromise is a contract by which the parties put an end to 
 a controversy which has arisen or prevent a controversy about to arise. 
 
 This contract must be drawn up in writing." 
 
 2046. "A person can compromise as to the civil interests resulting 
 from a misdemeanor. 
 
 "A compromise does not stop the action brought by the public 
 Prosecutor." 
 
 2052. "Compromises have, between the parties, the effect of a final 
 judgment. 
 
 "They cannot be attacked on account of an error of law, nor on account 
 of injury." 
 
 2058. "Errors of calculation in a compromise shall be corrected." 
 
 Title Sixteenth "Of Executions Against the Person in Civil Matters" 
 which was a part of the Code Napoleon, was repealed in 1867. 
 
 Title Seventeenth is "Of Pledges." 
 
 2072. "A pledge of personal property is called a pawn; A pledge of 
 real estate is called antichresis." 
 
CIVIL CODE OF FRANCE 1141 
 
 2073. "A pawn confers upon the creditor the right to cause himself 
 to be paid out of the thing pawned by way of privilege and in preference 
 to other creditors." 
 
 2078. "A creditor cannot, in case of non-payment, dispose of a pawn; 
 but he must have the Court's order that he shall retain the pawn as 
 payment and to the extent of its value, according to an appraisal made 
 by experts, or that it shall be sold at auction. 
 
 "All covenants allowing a creditor to appropriate the pawn, or to dis- 
 pose of it without complying with the formalities above set forth, shall 
 be void." 
 
 2084. "The foregoing provisions do not apply to commercial matters, 
 nor to pawn establishments duly authorized, and as to which the laws 
 and regulations relating to them shall be followed." 
 
 2085. "Antichresis can only be created by virtue of a writing. 
 
 "By such an agreement a creditor only acquires the right to collect the 
 revenues of the real estate on condition of applying them annually to the 
 payment of the interest, if any is due to him, and thereafter to the pay- 
 ment of the capital of his claim." 
 
 The creditor is bound to pay the taxes and keep the property in repair 
 out of the revenue received from it. 
 
 2088. "A creditor does not become the owner of the real estate by the 
 mere failure to pay at the time agreed upon; any clause to the contrary 
 is void : in such case he can resort to legal measures to have his debtor 
 dispossessed." 
 
 Title Eighteenth is "Of Privileges and Mortgages." 
 
 2095. "A privilege is the right which the nature of the claim gives to 
 a creditor to be preferred to other creditors, even to mortgagees." 
 
 2101. "Privileged claims on all personal property generally are those 
 hereinafter set forth, and can be asserted in the following order. 
 
 1. Court expenses ; 
 
 2. Funeral expenses; 
 
 3. (Amended by law of 30th November, 1892). All expenses relating to 
 the last illness, pro rata among those to whom they are due, whatever 
 may have been its termination ; 
 
 4. The wages of servants for the year elapsed and what is due for the 
 current year; 
 
 5. Supplies of provisions furnished to the debtor or his family, viz.: — 
 during the last six months by retail dealers, such as bakers, butchers and 
 others ; and during the last year by boarding-house keepers and wholesale 
 dealers." 
 
 Privileged claims are allowed on certain articles of property; as to a 
 landlord on the crops raised by or furniture of the tenant, subject to 
 debts for seeds and implements, to the seller for the price of the thing 
 sold while in the possession of the buyer, to an innkeeper on the effects 
 of his guests in his inn, to a carrier for the charges on the thing carried. 
 
II42 APPEXDIX 
 
 Preferred creditors as to real estate are, vendors for purchase money, 
 those who furnish purchase money to the buyer. Architects, contractors, 
 masons and other workmen for work in constructing or repairing buildings, 
 and one who loans the money to pay them for their work. Privileges 
 relating to real estate must have been inscribed on the register of 
 mortgages with certain exceptions. 
 
 21 17. "Legal mortgages are those resulting from the law. Judicial 
 mortgages are those resulting from judgments or judicial acts. Conven- 
 tional mortgages are those resulting from agreements and from the special 
 provisions of deeds and contracts." 
 
 21118. "The following property only can be mortgaged: 
 
 1. 'Real estate in trade and its accessories considered as real estate; 
 
 2. The usufruct of the same property and its accessories during the 
 time of its duration." 
 
 21 19. "Personal property cannot be subject to a mortgage." 
 
 2121. "The rights and claims to which a legal mortgage is attached are : 
 
 Those of married women, on the property of their husbands; 
 
 Those of minors and interdicted persons, on the property of their 
 guardians ; 
 
 Those of the State, Districts, and of public establishments, on the 
 property of collectors and administrators who are accountable." 
 
 2it22. "A creditor who has a legal mortgage can enforce his right upon 
 all the real estate belonging to his debtor, and upon the real estate which 
 may come to him in the future, subject to the restrictions hereinafter 
 contained." 
 
 A judicial mortgage results from a judgment in favor of a party and 
 from acknowledgments in the judgment of signature to an instrument 
 containing an obligation. 
 
 2124. "Conventional mortgages can only be granted by those who have 
 the capacity of conveying the real estate which they subject to them." 
 
 2127. "A conventional mortgage can only be granted by deed executed 
 in the public form in the presence of two notaries or of one notary and 
 two witnesses." 
 
 2134. "A mortgage, whether legal, judicial, or conventional, only ranks 
 among creditors from the day of the inscription which the creditor has 
 caused to be made on the registers of the Registrar in the form and 
 manner directed by law, with the exceptions mentioned in the following 
 article." 
 
 Mortgages exist independently of any inscription in favor of minors 
 on lands of their guardian, of married women for dowries and settle- 
 ments on real estate of their husbands. This is subject to various ex- 
 ceptions and qualifications given at considerable length. Inscriptions 
 of privileges and mortgages are made at the office of the Registrar of 
 Mortgages. 
 
 2150. "The Registrar enters on his register the contents of the state- 
 
CIVIL CODE OF FRAXCE 1143 
 
 ment and hands to the appearer the instrument or certified copy of the 
 same, and also one of the statements, at the foot of which he certifies that 
 he has made the inscription." 
 
 2154. "Inscriptions keep the mortgage and the privilege alive for ten 
 years from the day of their date ; their effect ceases if these inscriptions 
 have not been renewed before the expiration of this period." 
 
 2157. "Inscriptions shall be cancelled by the consent of the parties 
 interested and having capacity therefor, or by virtue of a judgment of 
 the highest Court, or one which has become final." 
 
 2160. "Cancellation must be ordered by the Tribunals when the in- 
 scription has been made without being based upon the law or upon an 
 agreement, or when it has been made upon an instrument which was 
 either irregular or has come to an end, or has been satisfied, or when the 
 rights of privilege or mortgage have been wiped out by operation of 
 the law." 
 
 2166. "Creditors who have a privilege or mortgage on real estate 
 which has been inscribed follow the real estate through whatever hands 
 it may pass and rank and are paid according to the rank of their claims or 
 inscriptions." 
 
 2169, "If a third party in possession fails to fully comply with one 
 of these obligations, each mortgagee has the right to cause the real 
 estate to be sold thirty days after the service upon the original debtor 
 of a demand and after service upon the third party in possession of a 
 notice to pay the debt which has become due or to abandon the estate." 
 
 Where a purchaser of real estate wishes to free it from privileges and 
 mortgages he may have his conveyance transcribed on the register of the 
 Registrar and give notice of his purchase to the creditors. The creditors 
 may then take the consideration paid by him to be applied according to 
 priority, or any creditor may apply for a public sale of the property 
 deeded. The creditor so applying must consent to raise the price one 
 tenth above the contract price. If the purchaser becomes the highest 
 bidder and pays more than his contract calls for he has a remedy over 
 against the seller for the excess in price which he is compelled to pay 
 the creditors. Registers are public and any person is entitled to a copy 
 of any record. The Registrars are liable for omissions to record or 
 make correct certificates. 
 
 Title Nineteenth is "Of Compulsory Ejectment and of Rank among 
 Creditors." 
 
 2204. "A creditor may sue for ejectment : 
 
 I. From real estate or its accessories deemed to be real property 
 owned in fee by his debtor ; 2. From the usufruct belonging to the debtor 
 upon property of the same nature." 
 
 2209. "A creditor cannot sue to have real estate which has not been 
 mortgaged to him sold, unless the property mortgaged to him is of in- 
 sufficient value." 
 
1 144 AjPPENDIX 
 
 2212. "If a debtor establishes by leases in the public form that the net 
 and available revenue of his real estate during one year is sufficient for 
 the payment of the principal, interest and costs of the debt, and if he offers 
 the assignment thereof to the creditor, the proceedings may be stayed by 
 the Judges, but may be renewed in case of an attachment or if some 
 other obstacle to the payment arises." 
 
 2213. "A forced sale of real estate can only be applied for by virtue 
 of an instrument in public form, and upon which execution can be issued, 
 and for a duly established and liquidated debt. If the debt is for money, 
 but is not liquidated, the proceedings are regular, but a public sale can 
 only take place after the same has been liquidated." 
 
 2215. "Proceedings can result from a provisional or final judgment 
 giving the right to immediate execution, notwithstanding an appeal; but 
 a public sale can only take place after a final judgment of the highest 
 Court or when a judgment has become final. 
 
 "Proceedings cannot be instituted in consequence of a judgment by 
 default during the time the default can be opened." 
 
 Previous to all proceedings for ejectment a demand for the debt must 
 be served on the debtor by a sheriff. 
 
 The Twentieth and last title is "Of Prescriptions." 
 
 2219. "Prescription is a way of acquiring property or of releasiing 
 oneself at the end of a certain period of time and under conditions 
 specified by law." 
 
 2220. "A person cannot renounce prescription beforehand : he can 
 renounce prescription which has taken effect." 
 
 2225. "Creditors or any other persons whose interest it is that pre- 
 scription should have taken place can set it up, even if the debtor or 
 owner renounces it." 
 
 2227. "The State, public institutions and districts are subject to the 
 same prescriptions as private individuals, and can set them up in the 
 same manner." 
 
 2228. "Possession is the retention or enjoyment of a thing or of a 
 right which we have and which we make use of, either ourselves or by 
 another person who holds it or makes use of it in our name." 
 
 2229. "In order that prescription should take place it is necessary to 
 have a continuous, uninterrupted, peaceful, public and unambiguous pos- 
 session in the capacity of owner." 
 
 2236. "Those who hold possession for third parties never acquire by pre- 
 scription, whatever time may have elapsed. 
 
 "Thus, a lessee, a depositary, a usufructuary, and all others who hold the 
 property of an owner, not as their own, cannot acquire it by prescription." 
 
 Prescription is interrupted by loss of possession one year, or a citation 
 to appear in court by one who wishes to prevent the prescription or by 
 an admission of the right of the adverse party by the one in possession. 
 Prescription does not run against minors and interdicted persons, nor 
 
CIVIL CODE OF FRANCE . ii45 
 
 between husband and wife, nor against a claim depending upon a con- 
 dition till the condition takes place. 
 
 2260. "Prescription is counted by days and not by hours." 
 
 2261. "It takes effect when the last day of the period has passed." 
 
 A bona fide purchaser of real property gains a good title by ten years 
 possession, where the owner resides in the district where it is situated, 
 and in twenty years where he resides outside the district. Suits for 
 wages are generally barred in six months, for the compensation of physi- 
 cians, surgeons, dentists, druggists and solicitors, in two years, for arrears 
 of annuities, allowances for support, rent of lands and interest on 
 loans, in five years. Other prescriptions are made by various provisions 
 of the code and other laws. 
 
 It must not be inferred that the quotations above given contain all the 
 provisions on a particular subject or that a summary has been made of 
 all matters of minor importance. The effort has been merely to give 
 enough to indicate the general frame of the code and those rules which 
 are peculiar to it. It contains many provisions taken from the code of 
 Justinian, yet the absence of slavery and of the patria potestas, so im- 
 portant in the Roman law, eliminates much of that which was most 
 conspicuous in the laws of Justinian. It is in contrast with the code 
 of China in the fundamental particular of punishments and penalties 
 and in most other particulars, with the code of Manu in the absence of 
 castes and of religious dogmas, and with the laws of England and the 
 United States, in its provisions for records of personal matters, its family 
 council, regulation of marriage and divorce, marriage contracts, wills 
 and donations, privileges and mortgages, and other minor particulars. The 
 absence of all provisions concerning private corporations, railroads, tele- 
 graphs, warehouses and other minor topics familiar to the English and 
 American lawyer is noticeable. Procedure in the courts is regulated by a 
 separate code. 
 
 Note. The passages above quoted are from the translation of Henry 
 Cachard published by Banks Brothers in 1895 and include amendments 
 made prior to that time. 
 
THE CIVIL CODE OF GERMANY 
 
 The Civil Code of Germany was promulgated by the emperor William 
 on August i8, 1896, to become in force on January i, 1900. It is divided 
 into 2385 paragraphs and the translation fills an ordinary octavo volume of 
 535 pages. It is divided into five books subdivided into Sections, Titles 
 and numbered paragraphs. 
 
 The first book contains "General Principles"; the first Section treats 
 of Persons, and the first title of Natural Persons, 
 
 II. "The legal capacity of a human being begins with the completion 
 of birth." 
 
 2. "Majority begins with the completion of the twenty-first year of age." 
 
 3. "A minor who has completed his eighteenth year of age may be 
 declared of full age by order of the Guardianship Court. 
 
 "By the declaration of majority the minor acquires the legal status of a 
 person of full age." 
 
 4. "The declaration of majority is permissible only if the minor gives 
 his approval. If the minor is under parental power, the approval of the 
 parent is also necessary, unless he has neither the care of the person 
 nor of the property of the child. For a minor widow the approval of the 
 parent is not necessary." 
 
 5. "The declaration of majority should issue only if it will promote 
 the welfare of the minor." 
 
 6. Provides for interdicting persons who are insane, feeble-minded, 
 prodigal or habitual drunkards. 
 
 The remaining paragraphs of this title prescribe rules for determining 
 domicile and for declaring dead those who have disappeared, making 
 different periods of time sufficient to raise a presumption of death accord- 
 ing to the difference in age and circumstances attending the disappearance, 
 ranging from one year in case of persons disappearing with a vessel lost at 
 sea to ten years. "If several persons have perished in a common peril 
 it is presumed that they died simultaneously." 
 
 The second title treats of "Juristic Persons." 
 
 21. "An association whose object is not the carrying on of an economic 
 enterprise, acquires juristic personality by registration in the register of 
 associations of the competent District Court." 
 
 22. "An association whose object is the carrying on of an economic 
 enterprise acquires juristic personality, in the absence of special provisions 
 of Imperial law, by grant from the State. The power to make such 
 grant belongs to the State in whose territory the association has its seat." 
 
 23. "An association whose seat is not in any state may, in the absence 
 of special provisions of imperial law, be granted juristic personality by 
 resolution of the Federal Council." 
 
 1 146 
 
CIVIL CODE OF GERMANY ^ 1147 
 
 24. "Unless it is otherwise provided, the place where the affairs of an 
 association are managed is deemed to be its seat." 
 
 25. "The constitution of an association having juristic personality so 
 far as it does not depend on the following provisions, is determined by 
 the articles of association." 
 
 2!^. "The association must have a directorate. The directorate must 
 consist of several persons. 
 
 "The directorate represents the association in judicial proceedings and 
 all other affairs; it is in the position of a statutory agent. The extent 
 of its representative authority, as against third persons, may be limited 
 by the articles." 
 
 Directors are appointed by resolution of the members, and may be 
 removed under certain limitations. The articles of association may be 
 altered by resolution of three-fourths of the members present. A mem- 
 ber's meeting shall be called on demand of the prescribed number of 
 members, and the District Court may authorize the call. 
 
 Z^. "Membership is not transferable, and does not pass by inheritance. 
 The exercise of the right of membership may not be delegated to another 
 person." But the provisions of 38 do not apply where the articles provide 
 otherwise. 
 
 An association may be dissolved hy resolution of three-fourths of the 
 members, and it loses juristic personality by the institution of bankruptcy 
 proceedings. Juristic personality may be withdrawn for misconduct. In 
 case of dissolution the affairs are wound up by the directorate or by 
 liquidators. 
 
 54. "Associations which have not juristic personality are subject to 
 the provisions relating to partnership. If a member of such an associa- 
 tion, acting in the name of the association, enters into a juristic act 
 with a third party, that member is personally liable; if several members 
 so act, they are liable as joint debtors." 
 
 Registration of associations is made in the District Court where the 
 association is not one carrying on an economic enterprise. The articles 
 of association must be signed by seven members, must state the objects, 
 name and seat of the association, and should also contain provisions 
 containing the admission and withdrawal of members, the contributions 
 made by them, the constitution of the directorate and the provisions re- 
 lating to meetings of members. On registration the name receives the 
 title of "registered association". Changes in the directorate and in the 
 articles must be registered. If the number of members falls below 
 three, juristic personality is withdrawn. Proceedings connected with the 
 dissolution of associations and the settlement of their affairs must be 
 reported for registration, and the records are open to public inspection. 
 
 Section Second deals with things, gives the definition of different terms 
 used to designate different classes of things, distinguishing movable things 
 from lands, gives rules for determining what is deemed a part of the 
 
1 148 APPENDIX 
 
 land and what movable and some for determining rights to the fruits 
 of things and the burdens to be borne by those whose rights are limited 
 in duration. 
 
 The third section treats of Juristice Acts. The first title deals with 
 "disposing capacity." 
 
 104. "A person is incapable of disposing — 
 
 1. Who has not completed his seventh year of age; 
 
 2. Who is in a condition of morbid disturbance of the mental activity 
 incompatible with a free determination of the will, in so far as the con- 
 dition is not temporary in its nature; 
 
 3. Who has been interdicted on account of insanity." 
 
 105. "The declaration of intention of a person incapable of disposing 
 is void. A declaration is also void which is made in a condition of uncon- 
 sciousness or temporary disturbance of the mental activity." 
 
 Following these paragraphs are others relating to contracts of minors 
 and others under disability, ratification and repudiation of them, giving 
 rules as to void and voidable acts of persons under disability similar in 
 most particulars to the rules prevailing in most countries. 
 
 The succeeding titles of this section deal with "Declaration of Inten- 
 tion," "Contract", "Conditions — Limitation of Time", Agency — Power of 
 Agency", and "Approval — Ratification." Though the arrangement of 
 these titles and the treatment of the subjects is peculiar the substance 
 of the rules declares is substantially the same as the Roman Civil Law, 
 with some provisions with reference to formalities made necessary by 
 changed conditions. Dealings by telegraph and telephone are recognized 
 in matters not requiring writings or official attestation. 
 
 The fourth section deals with "Periods of Time — Dates". The rules 
 accord with those usually followed in the business world. 
 
 The fifth section is entitled "Prescription". 
 
 194. "The right to demand an act or forbearance from another is 
 subject to prescription. A claim arising from a relation of family law 
 is not subject to prescription, so far as it has for its object the estab- 
 lishment for the future of the condition proper to the relation." 
 
 195. "The regular period of prescription is thirty years." 196 gives 
 seventeen classes of claims for which the period of prescription is two 
 years. These include most claims for goods sold and delivered and 
 services rendered including those of carriers and professional men. The 
 period is four years for claims for interest and instalments of principal, 
 for arrears of rent, annuities, recurrent acts stipulated for in the transfer 
 of a farm, salaries, pensions, allowances for maintenance and all other 
 periodical payments. Full provisions are made for determining the time 
 from which the prescription begins to run and the states of fact which 
 will have the effect of suspending its operation. 
 
 325. "Prescription may neither be excluded nor made more onerous by 
 juristic act. Prescription may be facilitated, especially by shortening the 
 period of prescription." 
 
CIVIL CODE OF GERMANY • 1149 
 
 The sixth section deals with "self-defence and self-help" in six para- 
 graphs declaring the rules generally recognized on these subjects. 
 The seventh section treats of "Giving of Security." 
 232. "If a person has to give security, he may do so : 
 
 (a) By lodging money or negotiable instruments; 
 
 (b) By pledge of claims which have been registered in the. Imperial 
 debt ledger or the state debt ledger of one of the States; 
 
 (c) By pledge of moveables; 
 
 (d) By charging hypothecas on land situate within the Empire; 
 
 (e) By pledge of claims secured by hypotheca on land situate within the 
 Empire, or by pledge of land charges or annuity charges on land situated 
 within the Empire. 
 
 If security cannot be given in this manner it is permissible to furnish 
 a proper surety." 
 
 235. "If a person has given security by lodging money or negotiable 
 instruments, he is entitled to exchange the money lodged for suitable 
 negotiable instruments, or the negotiable instruments lodged for other 
 suitable negotiable instruments, or for money." 
 
 The leading purpose of this section seems to be to enable the person 
 giving security to do so with his own property without involving his 
 friends as sureties. Its provisions may be studied with profit by American 
 legislators. 
 
 The Second Book treats of the "Law of Obligations". The first title 
 is "Obligation of Performance". It covers not only obligations for the 
 payment of money, delivery of property, and performance of contractual 
 obligations but also negligence in the non-performance of duties which 
 the debtor is bound to perform. 
 
 246. "If by law or juristic act a debt is to bear interest, four per 
 cent, per annum shall be paid, unless some other rate is specified." 
 
 247. "If a higher rate of interest than six per cent, per annum is agreed 
 upon, the debtor may, after the expiration of six months, give notice 
 of the payment of the principal, six months notice being required. The 
 right of payment on notice may not be excluded or limited by contract. 
 These provisions do not apply to obligations to bearer." 
 
 A contract for interest on interest is void, except when made by banking 
 institutions for interest on deposits. These seem to be the only re- 
 strictions on usury. 
 
 The second* title is "Default of the Creditor" and declares his duties to 
 accept performance, and to make counter-performance on his part where 
 obligated so to do. 
 
 The arrangement of the subjects covered by the remainder of the 
 second book is as follows : 
 
 Second Section. Obligations ex Contractu. 
 
 First Title. Creation of an Obligation — Scope of a Contract. 
 
 A contract impossible of performance is void, but may subject the 
 maker to damages if he knew of the impossibility. 
 
II50 APPENDIX 
 
 310. "A contract whereby one party binds himself to convey his future 
 property or a fractional part of his future property or to charge it with 
 a usufruct, .is void." 
 
 "A contract whereby one party binds himself to convey his present 
 property or to charge it with a usufruct, requires judicial or notarial 
 authentication." 
 
 Second Title. Mutual Contracts. 
 
 Third Title. Promise of Performance in favor of a Third Party. 
 
 328. "An act of performance in favor of a third party may by contract 
 be stipulated for in such manner that the third party acquires a direct 
 right to demand the performance," and this right may be inferred from 
 circumstances, and it may also be inferred where the parties to the 
 contract have the power to change or take away the third party's right. 
 
 335- "The promisee may, unless a contrary intention of the contracting 
 parties is to be presumed, demand performance in favour of the third 
 party, even though the right of the performance is in the latter." 
 
 Fourth Title. Earnest — Stipulated penalty. 
 
 "In case of doubt the earnest is not deemed to be a forfeit," and in 
 case of doubt shall be credited on the performance, and if the contract 
 is rescinded shall be returned. If the giver of the earnest is responsible 
 for the failure of performance or the contract is rescinded for his fault 
 the holder may retain it." 
 
 340. "If the debtor has promised the penalty for the case of his non- 
 fulfilling his obligation, the creditor may demand the forfeited penalty in 
 lieu of fulfillment. If the creditor declares to the debtor that he demands 
 the penalty, the claim for fulfillment is barred. 
 
 "If the creditor has a claim for compensation for non-performance, he 
 may demand the forfeited penalty as the minimum amount of the damage. 
 Proof of further damage is admissible." 
 
 343. "If a forfeited penalty is disproportionately high, it may be re- 
 duced to a reasonable amount by judicial decree obtained by the debtor." 
 
 'Fifth Title. Rescission. 
 
 Third Section. Extinction of Obligations. 
 
 First Title. Fulfilment. 
 
 Second Title. Lodgment. 
 
 372. "A debtor may lodge for the benefit of his creditor, money, nego- 
 tiable instruments and other documents and valuables in a public place 
 designated for that purpose, if the creditor is in default of acceptance. 
 The same rule applies if, for any other reason affecting the creditor 
 personally, or in consequence of uncertainty concerning the identity of 
 the creditor, not due to negligence, the debtor cannot fulfill it with safety." 
 
 373. "If the debtor is bound to perform only after counter-performance 
 has been effected by the creditor, he may make the right of the creditor to 
 
CIVIL CODE OF GERMANY 1151 
 
 receive the thing lodged dependent upon counter-performance by the 
 creditor." 
 
 374. "The lodgment shall be made in the lodgment-office of the place 
 where the performance is to be effected ; if the debtor makes the lodg- 
 ment in any other place, he shall compensate the creditor for any damage 
 arising therefrom. The debtor shall without delay notify the creditor 
 of the lodgment; if he fails to do so he is liable for compensation. The 
 notification may be dispensed with if it is impracticable." 
 
 376. "The debtor has the right to withdraw the thing lodged. The 
 right of withdrawal is barred : 
 
 1. If the debtor declares to the lodgment-office that he waives the 
 right of withdrawal; 
 
 2. If the creditor declares his acceptance to the lodgment-office. 
 
 3. If non-appealable judgment between the creditor and the debtor 
 declaring the lodgment legitimate is presented at the lodgment-office." 
 
 379. "If the right to withdraw the thing lodged is not barred, the 
 debtor may refer the creditor to the thing lodged. 
 
 "As long as the thing is on lodgment the creditor bears the risk, and 
 the debtor is not bound to pay interest or compensation for emoluments 
 not drawn. 
 
 "Jf the debtor withdraws the thing lodged, the lodgment is deemed not 
 to have been made." 
 
 380. "In so far as a declaration of the debtor recognising the creditor's 
 right to receive is necessary or adequate as evidence of such right ac- 
 cording to the regulations governing the lodgment-office, the creditor 
 may demand from the debtor the delivery of the declaration under the 
 same conditions under which he would have been entitled to demand 
 the performance, if the lodgment had not taken place." 
 
 Provision is made for the sale of movables not suitable for lodgment, 
 if the creditor is in default, and lodgment of the proceeds. 
 Third Title. Set-off. 
 Fourth Title. Release. 
 Fourth Section. Transfer of Claims. 
 
 398. "A claim may by contract with another person, be transferred 
 by the creditor to him. On the conclusion of the contract the assignee 
 takes the place of the assignor." 
 
 399. "A claim is not assignable if the performance cannot be effected 
 in favor of any person other than the original creditor without alteration 
 of its substance, or if assignment is excluded by agreement with the 
 debtor." 
 
 400. "A claim is not assignable if it is not subject to judicial attachment." 
 404. "The debtor may set up all defenses against the assignee which 
 
 at the time of the assignment of the claim, were available against the 
 assignor." 
 406. "The debtor may also set off against the assignee an existing 
 
II52 APPENDIX 
 
 claim which he has against the assignor, unless he had knowledge of 
 the assignment at the time of the acquisition of the claim, or unless the 
 claim did not become due until after he had acquired such knowledge 
 and after the maturity of the assigned claim." 
 
 410. "The debtor is bound to perform in favor of the assignee only 
 upon production of an instrument of assignment executed by the assignor, 
 A notice or a warning by the assignee is of no effect, if it is given without 
 production of such an instrument, and the debtor without delay rejects it 
 for this reason. These provisions do not apply if the assignor has given 
 written notice of the assignment to the debtor." 
 
 413. "The provisions relating to the transfer of claims apply mutatis 
 mutandis to the transfer of other rights, unless the law provides otherwise." 
 
 Fifth Section. Assumption of Debt. 
 
 Sixth Section. Plurality of Debtors and Creditors. 
 
 Seventh Section. Particular kinds of Obligations. 
 
 First Title. Sale — Exchange. 
 
 Second Title. Gift. 
 
 518. "For the validity of a contract whereby an act of performance is 
 promised gratuitously, judicial or notarial authentication of the promise 
 is necfessary. If a promise of debt or acknowledgment of debt of the 
 kind specified in 780, 781, be made gratuitously, the same rule applies 
 to the promise or the declaration of acknowledgment." 
 
 519. "A donor is entitled to refuse fulfilment of a promise made 
 gratuitously in so far as, having regard to his other obligations, he is 
 not in a position to fulfil the promise without endangering his own 
 maintenance suitable to his station in life or the duties to furnish 
 maintenance to others imposed upon him by law. If the claims of several 
 donees conflict, the claim which first arose takes priority." 
 
 521. "A donor is responsible only for wilful default and gross 
 negligence." 
 
 522. "A donor is not bound to pay interest for default." 
 
 A donor is bound to make good a defect of title or fraudulently con- 
 cealed defect of quality in the thing given, and to acquire title to an 
 article promised that he does not own. 
 
 528. "Where the donor after the execution of the gift, is not in a 
 position to maintain himself in a manner suitable to his station in life, 
 and to fulfil the statutory duty to furnish maintenance imposed on 
 him in favor of his relatives by blood, his wife, or his former wife, 
 he may demand the donee to return the gift under the provisions relating 
 to the return of unjustified benefits. The donee may avoid the return 
 by payment of the sum necessary for such maintenance. ..." 
 
 529. "The claim to the return of a gift is barred if the donor has 
 brought about his poverty wilfully or by his gross negligence, or if at 
 the time of his impoverishment ten years have elapsed since the delivery 
 of the object given. The same rule applies if the donee, haying regard 
 
CIVIL CODE OF GERMANY 1153 
 
 to his other obligations, is not in a position to return the gift without 
 endangering his own maintenance suitable to his station in life, or the 
 fulfilment of the duties to furnish maintenance to others imposed upon 
 him by law. 
 
 530. "A gift may be revoked if the donee renders himself guilty of 
 gross ingratitude by any serious misconduct towards the donor or a near 
 relation of the donor. The right to revoke belongs to the heirs of the 
 donor only if the donee has wilfully and unlawfully killed the donor, 
 or prevented him from revoking." 
 
 (All of the foregoing provisions relating to gifts are unknown to 
 the Common Law of England and the United States.) 
 
 534. "Gifts which are made in compliance with a moral duty or the 
 rules of social propriety are not subject to recall or revocation." 
 
 Third Title. Ordinary Lease. Usufructuary Lease. 
 
 559. "The lessor of a piece of land has, by way of security for his 
 claims arising from the lease, a right of pledge over the things brought 
 upon the premises by the lessee. The right of pledge may not be en- 
 forced for future claims for compensation nor for any rent for a later 
 time than the current and following year of the lease. It does not 
 extend to things not subject to judicial attachment." 
 
 560. "The lessor's right of pledge is extinguished by the removal of 
 the things from the land unless the removal takes place without the 
 knowledge or in spite of an objection of the lessor. The lessor may not 
 object to the removal if it takes place in the regular course of business 
 of the lessee, or in accordance with the ordinary affairs of life, or if 
 the things remaining on the premises are evidently sufficient for the 
 security of the lessor." 
 
 562. "The lessee may prevent the enforcement of the lessor's right 
 of pledge by giving security; he may release each individual thing from 
 the right of pledge by giving security to the extent of its value." 
 
 Fourth Title. Loan for Use. 
 
 Fifth Title. Loan for Consumption. 
 
 Sixth Title. Contract for Service. 
 
 618. "A master has so to fit up and maintain rooms, appliances and 
 implements which he has to provide for the performance of the service 
 and so to regulate the services which are to be performed under his 
 orders or under his direction that the servant is protected against danger 
 to life and health as far as the nature of the service permits. 
 
 "If the servant is taken into the household, the master shall make such 
 arrangements and regulations with regard to living and sleeping rooms^ 
 sustenance, and time for labor and for recreation as are necessary with 
 regard to the health, morality and religion of the servant." 
 
 619. "The obligations imposed upon the master by 617, 618 may not be 
 avoided or limited by contract in anticipation." 
 
 Where the termination of the service is not fixed by contract various 
 
1 154 APPENDIX 
 
 notices to terminate it are required corresponding generally with the 
 periods by which the compensation for the service is measured. 
 
 626. "Notice to terminate the service relation may be given by either 
 party without observance of any term of notice if a grave reason exists." 
 
 630. "On the termination of a continuous service relation the servant 
 may demand from the other party a written testimonial as to the service 
 relation and its duration. The testimonial shall on demand contain a 
 statement as to his efficiency and conduct in service." 
 
 Seventh Title. Contract for Work. 
 
 Eighth Title. Brokerage. 
 
 Ninth Title. Promise of Reward. 
 
 Tenth Title. Mandate. 
 
 662. "By the acceptance of a mandate the mandatary binds himself 
 gratuitously to take charge of an affair for the mandator entrusted to him 
 by the latter. 
 
 671. "A mandate may be revoked at any time by the mandator, and 
 terminated by notice at any time by the mandatary. 
 
 "The mandatary can give notice only in such manner that the mandator 
 can make other arrangements for the charge of the affair, unless a grave 
 reason exists for the improper notice. If he gives improper notice 
 without such reason, he shall compensate the mandator for any damage 
 arising therefrom. 
 
 "If a grave reason exists the mandatary is entitled to give notice even 
 though he has waived the right to do so." 
 
 676. "A person who gives advice or a recommendation to another is 
 not bound to compensate for any damage arising from following the 
 advice or the recommendation, without prejudice to his responsibility 
 resulting from a contract or an unlawful act." 
 
 Eleventh Title. Management of Affairs without Mandate. 
 
 677. "A person who takes charge of an affair for another without 
 having received a mandate from him or being otherwise entitled to do so 
 in respect of him, shall manage the affair in such manner as the interest 
 of the principal requires, having regard to his actual or presumptive 
 wishes." 
 
 679. "The fact that the management of the affair is opposed to the 
 wishes of the principal is not taken into consideration if, without the 
 management of the affair, a duty of the principal the fulfilment of which 
 is of public interest or a statutory duty to furnish maintenance to others 
 by the principal would not be fulfilled in due time." 
 
 680. "If the management of the affair has for its object the averting 
 of an imminent danger which threatens the principal the agent is re- 
 sponsible only for wilful default and gross negligence." 
 
 Twelfth Title. Deposit. 
 
 688, "By a contract of deposit the depositary is bound to keep in his 
 custody a moveable delivered to him by the depositor." 
 
CIVIL CODE OF GERMANY . 1155 
 
 689. 'IRemuneration for the custody is deemed to have been tacitly 
 agreed upon if under the circumstances the undertaking of the custody 
 is to be expected only for remuneration." 
 
 690. "If the custody is undertaken gratuitously, the depositary shall 
 be responsible only for such care as he is accustomed to exercise in his 
 own affairs." 
 
 Thirteenth Title. Delivery of Things to Innkeepers. 
 
 701. "An innkeeper who makes a business of receiving and lodging 
 guests shall compensate a guest received in the course of business for 
 any damage which the latter suffers through the loss or damage of things 
 brought upon his premises. The duty to make compensation does not 
 arise if the damage is caused by the guest, an attendant of the guest, 
 or a person whom he has received, or if it occurs by reason of the 
 character of the things, or by vis major." 
 
 "Things are deemed to have been brought upon the premises which 
 the guest has delivered to the innkeeper or the innkeepers servant who 
 has been appointed to receive the things or in the circumstances are 
 deemed to have been so appointed, or which he has brought to a place 
 designated to him by them, or in the absence of such designation, to 
 a place provided for such purpose, A posted notice whereby the inn- 
 keeper disclaims liability is of no effect." 
 
 702. "For money, negotiable instruments, and valuables the innkeeper 
 is liable under 701 only to the amount of one thousand marks, unless 
 he receives these articles into his custody with knowledge of their 
 character as valuables, or refuses to undertake the custody, or unless the 
 damage is due to the fault of himself or his servants." 
 
 704. "The innkeeper has a right of pledge over the things brought 
 upon the premises by the guest by way of security for his claims for 
 lodging and other services afforded to the guest in satisfaction of his 
 needs, including disbursements." 
 
 Fourteenth Title. Partnership. 
 
 709. The management of the affairs of the partnership belongs to all 
 the partners in common ; for every affair the consent of all the partners 
 is necessary." 
 
 "If in accordance to the contract of partnership, the majority of the 
 votes is to decide, the majority shall, in case of doubt, be reckoned 
 according to the number of partners." 
 
 711. "If, according to the contract of partnership, the management of 
 affairs belongs to all or to several partners in such manner that each 
 is entitled to act alone, then each may oppose the undertaking of any affair 
 by another. In case of opposition the affair must be left undone. 
 
 "If a partnership is not entered into for a fixed time, every partner 
 may at any time give notice of its dissolution." 
 
 725. "If a creditor of one partner has levied judicial attachment on 
 the share of the partner in the partnership property, he may give notice 
 
1 156 APPENDIX 
 
 of the dissolution of the partnership without observance of any term 
 of notice, unless his title in the debt is only provisionally executory. 
 
 "So long as the partnership exists the creditor may not enforce the 
 rights of the partner arising out of the partnership, with the exception 
 of the claim to a dividend." 
 
 Fifteenth Title. Community of Ownership. 
 
 744. "The management of the common object belongs to the participants 
 in common. Each participant is entitled to take any measure necessary 
 for the preservation of the object without the consent of the other par- 
 ticipants; he may require that they give their approval in advance for 
 such a measure." 
 
 745. "By a vote of the majority regulations for management and use 
 corresponding to the character of the common object may be determined 
 upon. The vote of the majority shall be reckoned according to the value 
 of the shares." 
 
 747. "Each participant may dispose of his share. The participants 
 may dispose of the common object only as a whole and only when they 
 are acting in common." 
 
 752. "The dissolution of the community is effected by partition in 
 kind, if the common object or objects can be distributed without dim- 
 inution of value into similar parts proportional to the shares of the 
 participants. The distribution of equal parts among the participants 
 is made by lot. 
 
 753. "If partition in kind is impossible, the dissolution of the com-^ 
 munity is effected by sale of the common object under the provisions 
 relating to sale of pledges; in the case of land, by compulsory auction- 
 and distribution of the proceeds, if alienation to a third person is not 
 permitted, the object shall be sold by auction among the participants." 
 
 Sixteenth Title. Annuities, 
 
 Seventeenth Title. Gaming — Betting. 
 
 'J62. "No obligation is created by gaming or betting. What has been; 
 given by reason of the gaming or betting may not be demanded back 
 on the ground that no obligation existed. 
 
 "These provisions apply also to an agreement whereby the losing party,. 
 for the purpose of satisfying a gaming debt or a bet, incurs an obligation 
 toward the other party, e.g. an acknowledgment of debt." 
 
 763. "A lottery contract or a raffle contract is binding if the lottery 
 or the raffle is ratified by the government. In all other cases the pro- 
 visions of 762 apply. 
 
 764. "If a contract purporting to be for the delivery of goods or 
 negotiable instruments is entered into with the intention that the differ- 
 ence between the price agreed upon and the exchange or market price 
 at the time of delivery shall be paid by the losing to the winning party,, 
 the contract shall be deemed to be a gaming contract. This applies, 
 also if only one of the parties knows or ought to know of this intention.** 
 
 Eighteenth Title. Suretyship. 
 
CIVIL CODE OF GERMANY • 115?- 
 
 774, "Where the surety satisfies the creditor the claim of the creditor 
 against the principal debtor is transferred to him. The transfer may 
 not be enforced to the detriment of the creditor. Defenses of the 
 principal debtor arising from a legal relation existing between him and 
 the surety remain unaffected. 
 
 Nineteenth Title. Compromise. 
 
 Twentieth Title. Promise of debt — Acknowledgment of Debt. 
 
 780. "For the validity of a contract whereby an act of performance 
 is promised in such manner that the promise itself is to create the obliga- 
 tion, a written statement of the promise is necessary unless some other 
 form is prescribed. 
 
 782. "If a promise of debt or an acknowledgment of debt is issued 
 in consequence of an agreed account, or by way of compromise, the 
 written form prescribed in 780, 781 is unnecessary." 
 
 Twenty-first Title. Orders to pay or deliver. 
 
 790. "A drawer may revoke his order as against the drawee, so long 
 as the drawee has not accepted the order in favor of the payee, or has not 
 made payment or delivery. This applies even though the drawer by the 
 revocation acts contrary to an obligation imposed upon him in favor of 
 the payee." 
 
 791. "An order to pay or deliver is not extinguished by the death or 
 occurrence of disposing incapacity of one of the parties." 
 
 Twenty-Second Title. Obligations to Bearer. 
 
 793. "If a person has issued an instrument in which he promises to 
 perform an act in favor of the bearer of the instrument, the bearer may 
 require him to effect the promised performance, unless he is not entitled 
 to dispose of the instrument. The maker is, however, released from his 
 obligation by performing in favor of a bearer, even though the latter 
 is not entitled to dispose of the instrument. The validity of the signa- 
 ture may, by a provision contained in the instrument, be made subject 
 to the observance of a particular form. For the signature a subscription 
 made by means of mechanical reproduction is sufficient." 
 
 794. "The maker is bound by an obligation to bearer even if it has 
 been stolen from him, or lost by him, or has otherwise passed into cir- 
 culation without his consent. 
 
 "The validity of an obligation to bearer is not affected by the fact that 
 the instrument is issued after the maker has died or has become in- 
 capable of disposing." 
 
 795. "Obligations to bearer issued within the Empire in which the 
 payment of a certain sum of money is promised may be put in circulation 
 only with the ratification of the Government. 
 
 "The ratification is given only by the central authority of the State in 
 whose territory the maker has his domicile or his industrial location.' 
 The giving of the ratification and the conditions under which it is given 
 shall be published in the Deutscher Reichsanzeiger. 
 
HS8 APPEXDIX 
 
 "An obligation which has passed into circulation without the ratification 
 of the Government is void; The maker shall compensate the bearer for 
 any damage caused by its issue." 
 
 796. ''The maker may set up against the bearer of the obligation only 
 the defenses which affect the validity of the issue, or appear from the 
 instrument itself or which the maker has directly against the bearer." 
 
 Twenty-third Title. Production of Things. 
 
 This title gives an interested party the right to inspect things or 
 documents in the possession of another. 
 
 Twenty-fourth Title. Unjustified Benefits. 
 
 812. "A person who, through an act performed by another, or in any 
 other manner, acquires something at the expense of the latter without 
 legal ground, is bound to return it to him. He is so bound even if a 
 legal ground originally existing disappears subsequently, or a result orig- 
 inally intended to be produced by an act of performance done by virtue 
 &i a juristic act is not produced. 
 
 ''Recognition of the existence or non-existence of a debt, if made under 
 a contract is also deemed to be an act of performance." 
 
 813. "The value of an act of performance done for the purpose of ful- 
 filling an obligation may be demanded back even if there was a defense 
 to the claim whereby the enforcement of the claim was permanently 
 barred. ..." 
 
 814. "The value of an act of performance done for the purpose of 
 fulfilling an obligation may not be demanded back if the person per- 
 forming knew that he was not bound to effect the performance, or if the 
 performance was in compliance with a moral duty, or the rules of social 
 propriety." 
 
 821. "A person who incurs an obligation without legal ground may 
 refuse performance, even if the claim for release from the obligation has 
 heen barred by prescription." 
 
 822. "If the recipient of a benefit transfers such benefit gratuitously to 
 a third party, and if in consequence of this the obligation of the recipient 
 for return of the benefit is excluded, the third party is bound to return 
 the benefit as if he had received it from the creditor without legal ground." 
 
 Twenty-fifth Title. Unlawful Acts. 
 
 823. "A person who, wilfully or negligently, unlawfully injures the 
 life, body, health, freedom, property or any other right of another is 
 bound to compensate him for any damage arising therefrom." 
 
 "A person who infringes a statutory provision intended for the pro- 
 tection of others incurs the same obligation. If, according to the purview 
 of the statute, infringement is possible without any fault on the part 
 of the wrong-doer, the duty to make compensation arises only if some 
 fault can be imputed to him." 
 
 824. "A person who maintains or publishes, contrary to the truth, a 
 statement calculated to endanger the credit of another, or to injure hi& 
 
CIVIL CODE OF GERMANY. 1159 
 
 earnings or prosperity in any other manner, shall compensate the other 
 for any damage arising therefrom even if he does not know of its un- 
 truth, provided he ought to know it. 
 
 "A person who makes a communication the untruth of which is un- 
 known to him, does not thereby render himself liable to make com- 
 pensation, if he or the receiver of the communication has a legal interest 
 in it." 
 
 833. "If a person is killed, or the body or health of a person is injured, 
 or a thing is damaged by an animal, the person who keeps the animal is 
 bound to compensate the injured party for any damage arising therefrom." 
 
 835. "If land over which its owner does not have the sporting rights 
 is damaged by wild boar, red deer, elk, fallow deer, roe, deer, or pheasants, 
 the person who has the sporting rights is bound to compensate the 
 injured party for the damage. The duty to make compensation extends to 
 all damages which the animals do to products of the land which have 
 been harvested, though not yet gathered in. 
 
 "If the exercise of the sporting rights belonging to the owner is with- 
 drawn from him by law, the person who is by law entitled to exercise 
 the sporting rights has to make compensation for the damage. If the 
 owner of a piece of land over which the sporting rights, on account of 
 the situation of the land, can be exercised only in common with the 
 sporting rights of another piece of land, has leased the sporting rights to 
 the owner of such another piece of land under a usufructuary lease, the 
 latter is responsible for the damage. 
 
 "If, for the purpose of a common exercise of the right of sporting, 
 the land-owners of a district have been united by law into an association 
 which is not liable as such, they are responsible for damages in proportion 
 to the size of their landed properties." 
 
 847. "In the case of injury to the body or health of another, or in the 
 case of the deprivation of liberty, the injured party may also demand 
 an equitable compensation in money for the damage which is not a 
 pecuniary loss. The claim is not transferable, and does not pass to the 
 heirs, unless it has been acknowledged by contract, or an action on it has 
 been commenced." 
 
 "A like claim belongs to a woman against whom an immoral crime 
 or offense is committed, or who is induced by fraud, or by threats, or by 
 an abuse of a relation of dependence to permit illicit co-habitation." 
 
 The foregoing extracts show the arrangement, scope and general 
 character of the second book and those provisions which appear to 
 be peculiar to this code. 
 
 Law of Things 
 
 Third Book. First Section. Possession. 
 
 859. "A possessor may forcibly resist unlawful interference. If a 
 movable is taken away from the possessor by unlawful interference, he 
 
ii6o APPENDIX 
 
 may retake it by force from the wrongdoer if he be caught in the act 
 or immediately pursued. 
 
 "If a possessor of land is deprived of possession by unlawful inter- 
 ference, he may, immediately upon being dispossessed, recover possession 
 by the expulsion of the wrongdoer." 
 
 Second Section. General Provisions Relating to Rights over Land. 
 
 873. "For the transfer of ownership of land, or the creation of any 
 right in another over land, or for the transfer of or the creation of a 
 charge upon such right, a real agreement between the person entitled and 
 the other party relating to the change of title and registration of the 
 change of title in the land register are necessary, unless the law provides 
 otherwise. 
 
 '^Before the registration the parties are bound by the agreement only 
 if the declarations have been judicially or notarially authenticated, or 
 have been made or filed in the land registry office, or if the person entitled 
 has delivered to the other party an authorization for registration con- 
 formable with the provisions of the Land Registration Act." 
 
 879. "The order of priority among several rights to which land is 
 subject is determined, if the rights have been registered in the same 
 division of the land register, by the order of registration. If the rights 
 have been registered in different divisions, the right registered as of 
 earlier date has priority; rights registered as of the same date have 
 equal rank. 
 
 "The registration is conclusive for the order of priority, even though the 
 real agreement necessary according to 873 for the acquisition of the right 
 has not been completed till after the registration. A diffierent arrange- 
 ment of the order of priority requires registration in the land register." 
 
 883. "A caution may be entered in the land register for securing a 
 claim for the concession or release of a right affecting land or affecting 
 a right over land, or for the alteration of the rank or substance of such 
 a right. The registration of a caution is also permissible for securing a 
 future or conditional claim. 
 
 "A disposition which is made affecting the land or the right after the 
 registration of the caution is ineffective, in so far as it would defeat or 
 impair the claim. This applies even where the dis'position is made bv 
 means of compulsory execution or distraint, or by a trustee in bankruptcy. 
 
 The rank of the right for the concession of which the claim is made 
 is determined by the date of the registration of the caution," 
 
 885. "The registration of a caution is effected by virtue of a provisional 
 decree, or of an authorization by the person whose land or right is 
 affected by the caution. It is not necessary for the issue of the pro- 
 visional decree that prima facie evidence be given that the claim to be 
 secured is likely to be endangered. In the registration reference may be 
 made to the provisional decree or to the authorization for registration for 
 fuller specification of the claim to be secured." 
 
CIVIL CODE OF GERMANY 1161 
 
 Third Section. Ownership. 
 First Title. Scope of Ownership. 
 
 903. "The owner of a thing may, in so far as the law or the rights 
 of third parties admit, deal with the thing as he pleases and exclude others 
 from any interference with it." 
 
 904. "The owner of a thing is not entitled to forbid the interference of 
 another with the thing, if the interference is necessary for averting a 
 present danger and the threatened injury is disproportionately great in 
 comparison to the injury caused to the owner by the interference. The 
 owner may require compensation for the damage caused to him." 
 
 905. "The right of the owner of a piece of land extends to the space 
 above the surface and to the substance of the earth beneath the surface. 
 The owner may not, however, forbid interference which takes place at 
 such a height or depth that he has no interest in its prevention." 
 
 906. "The owner of a piece of land may not forbid the discharge of 
 gases, vapors, odors, smoke, soot, heat, noise, vibrations and similar in- 
 terferences proceeding from another piece of land, in so far as the 
 interference does not, or does not essentially, injure the use of his land, or 
 is caused by a use of the other land which is customary according to 
 the local customs for lands in such situation. Discharge by a special 
 conduit is not permitted." 
 
 907. "The owner of a piece of land may prevent the construction 
 or erection, on an adjoining piece of land, of structures from which it 
 can be foreseen with certainty that their condition or use will result in 
 an inadmissible interference with his land. If a structure complies 
 with the provisions of the State law which prescribe a specified distance 
 from the boundary or other protective measures, the removal of the 
 structure can be required only if the inadmissible interference actually 
 takes place. 
 
 "Trees and shrubs are not structures within the meaning of these 
 provisions." 
 
 Second Title. Acquisition and Loss of Ownership of Land. 
 
 925. "The real agreement of the alienor and the acquirer necessary 
 according to 873 for the transfer of ownership of land must be declared 
 at the land registry office in the presence of both parties simultaneously. 
 
 A conveyance by agreement made subject to any condition or limitation 
 of time is of no effect." 
 
 Third Title. Acquisition and Loss of Ownership of Movables. 
 
 929. "For the transfer of ownership of a moveable it is necessary that 
 the owner deliver the thing to the acquirer and make a real agreement 
 with him that the ownership shall pass. If the acquirer is in possession 
 of the thing the real agreement as to the passing of ownership is 
 sufficient." 
 
 930. "Where the owner is in possession of the thing a real agreement 
 
ii62 APPEXDIX 
 
 between him and the acquirer relating to a legal relation whereby the 
 acquirer acquires indirect possession takes the place of delivery." 
 
 932. "By an alienation made under 929 the acquirer becomes owner 
 even though the thing does not belong to the alienor, unless he is in 
 bad faith at the time at which according to these provisions he would 
 acquire ownership. In the case provided for by 929 sentence 2, this 
 applies, however, only where the acquirer had acquired possession from 
 the alienor. 
 
 "The acquirer is in bad faith if it is known to him, or unknown in 
 consequence of gross negligence, that the thing does not belong to the 
 alienor." 
 
 935. "Ownership may not be acquired under 932 or 934 if the thing has 
 been stolen from the owner, or has been lost, or has otherwise become 
 missing. Where the owner was only indirect possessor, the same rule 
 applies if the thing has been missed by the possessor. 
 
 "These provisions do not apply to money or instruments to bearer nor 
 to things which are alienated by means of public auction." 
 
 937. "A person who has a movable for ten years in his proprietary 
 possession acquires ownership thereof (usucaption). 
 
 "iUsucaption is excluded if the acquirer was in bad faith at the time 
 of acquiring proprietary possession, or if he subsequently learns that 
 the ownership does not belong to him." 
 
 947. "If movables become attached to each other in such manner that 
 they become essential component parts of a single thing, the former 
 owners become co-owners of such thing; their shares are determined in 
 proportion to the value which such movables had at the time of the 
 incorporation. If one of the things is to be regarded as the principal 
 thing, the owner of the principal thing acquires sole ownership." 
 
 958. "A person who takes proprietary possession of an ownerless mov- 
 able acquires ownership of such movable. 
 
 "Ownership is not acquired if the appropriation is forbidden by law, or 
 if by taking possession the right of another to appropriate the movable 
 is violated." 
 
 961. "If a swarm of bees migrates, they become ownerless, unless the 
 owner pursue them without delay, or gives up the pursuit." 
 
 965. "A person who finds a lost thing and takes possession of it shall 
 give notice without delay to the loser, or the owner, or any other person 
 entitled to receive it. If the finder does not know the persons who are 
 entitled to receive it, or if their residence is unknown to him, he shall 
 without delay give notice to the police authority of the finding and of the 
 circumstances which may be material for the discovery of the persons 
 entitled to receive the thing. If the thing is not worth more than three 
 marks, notification is not required." 
 
 971. "The finder may demand a reward from the person entitled to 
 receive the thing. The reward amounts to five per cent, of the value of 
 
CIVIL CODE OF GERM AX Y 1163 
 
 the thing up to three hundred marks., and one per cent, on value in excess; 
 in the case of animals one per cent. If the thing has a value only for the 
 person entitled to receive it, the rev^ard shall be determined in an 
 equitable manner. The claim is barred if the finder violates the duty 
 of giving notice, or conceals the finding on inquiry being made." 
 
 973- "Upon the lapse of one year from the notice of the finding to 
 the police authority the finder acquires ownership of the thing, unless 
 within such period a person entitled to receive it has become known to 
 the finder, or has notified the police authority of his right. Upon the 
 acquisition of ownership all other rights over the thing are extinguished." 
 
 Fourth Title. Claims arising from Ownership. 
 
 Fifth Title. Co-ownership. 
 
 ion. "Every co-owner may enforce as against third parties any claims 
 arising from ownership in respect of the entire thing." 
 
 Fourth Section. Heritable Building Rights. 
 
 1012. "A piece of land may be charged with a right in such manner 
 that the person in whose favor the right is created has an alienable and 
 heritable right to have a structure upon or beneath the surface of such 
 land." 
 
 1014. "The limitation of a heritable building right to a part of a build- 
 ing, e.g. to one particular story, is not permissible." 
 
 1016. "A heritable building right is not extinguished by the destruction 
 of the structure." 
 
 1017. "The provisions relating to land apply to heritable building 
 rights. ..." 
 
 Fifth Section. Servitudes. 
 First Title. Real Servitudes. 
 
 1018. "A piece of land may be charged with a right in favor of the 
 owner for the time being of another piece of land in such manner that the 
 latter may use the land in certain ways, or that certain acts may not be 
 done on the land, or that the exercise of a right is excluded which arises 
 from the ownership of the servient tenement in respect of the other 
 land." 
 
 Second Title. Usufruct. 
 
 1030. "A thing may be charged with a right in such manner that the 
 person in whose favor the right is created is entitled to draw the emolu- 
 ments of the thing. A usufruct may be limited by the exclusion of certain 
 classes of emoluments." 
 
 Third Title. Limited personal Servitudes. 
 
 1090. "A piece of land may be charged with a right in such manner 
 that the person in whose favor the right exists is entitled to use the land 
 in certain ways, or that some other authority belongs to him which can 
 constitute the substance of a real servitude." 
 
 1092. "A limited personal servitude is not transferable. The exercise 
 of the servitude can be transferred to another person only if the transfer 
 is authorized." 
 
Ii64 . ■ APPENDIX 
 
 Sixth Section. Real Right of Preemption. 
 
 1094. "A piece of land may be charged with a right in such manner 
 that the person in whose favor the right exists is entitled to preemption 
 as against the owner. 
 
 The right of preemption may also be created in favor of the owner 
 for the time being of another piece of land." 
 
 Seventh Section. Perpetual Charges on Land. 
 
 1105. "A piece of land may be charged with a right in such manner 
 that periodical acts of performance are to be done with the means 
 derived from the land in favor of the person in whose favor the right 
 exists." 
 
 "A perpetual charge may also be granted in favor of the owner for the 
 time being of another piece of land." 
 
 Eighth Section. Hypotheca — Land Charge — Annuity Charge. 
 
 First Title. Hypotheca. 
 
 1113. "A piece of land may be charged with a right in such manner 
 that to the person in whose favor the right is created a specified sum of 
 money is to be paid out of the land m satisfaction of a claim belonging 
 to him. A hypotheca may also be granted for a future or a conditional 
 claim." 
 
 II 15. "In the registration of a hypotheca, the name of the creditor, tlie 
 amount of the claim, and, if the claim bears interest, the rate of interest, 
 and where other accessory payments are to be made, their amount must 
 be stated in the land register; for the rest reference may be made to the 
 authorization for fuller specification of the claim. 
 
 "In the case of the registration of a hypotheca for loan for consumption 
 made by a credit institution whose charter has been made public by the 
 competent authority, a reference to the charter is sufficient for the 
 specification of such accessory payments as are to be made according 
 to the charter in addition to interest." 
 
 11116. "A certificate of hypotheca is issued for the hypotheca." 
 
 1136. "An agreement is void whereby the owner binds himself to the 
 creditor not to alienate the land nor to subject it to further rights." 
 
 Second Title. Land Charge — Annuity Charge. 
 
 1 191. "A piece of land may be charged in such manner that a specified 
 sum of money is to be paid out of the land to the person in whose 
 favor the charge is made. The charge may also be made in such man- 
 ner that interest upon the sum of money, as well as other accessory pay- 
 ments, is to be paid out of the land." 
 
 1 192. "The provisions relating to hypothecas apply mutatis mutandis to 
 land charges, except in so far as a contrary intention appears from the 
 fact that a land charge does not presuppose a claim. The provisions 
 relating to interest on a hypothecary claim apply to interest on a land 
 charge." 
 
 1199. "A land charge may be granted in such manner that a specified 
 
CIVIL CODE OF GERMAXY . 1165 
 
 sum of money is to be paid out of the land at regularly recurring periods. 
 In granting an annuity charge the amount, by payment of which the 
 annuity charge may be redeemed must be specified. The redemption 
 sum must be stated in the land register," 
 
 Ninth Section. Pledges of Moveables and of iRights. 
 
 First Title. Pledge of Moveables. 
 
 1204. "A moveable may for the security of a claim, be charged in such 
 manner that the creditor is entitled to seek satisfaction out of the move- 
 able. A pledge may also be granted as a security for a future or a 
 conditional claim." 
 
 1205. "For the grant of a pledge it is necessary that the owner deliver 
 the thing to the creditor and make a real agreement with him to the 
 effect that the pledges shall belong to the creditor. If the creditor is in 
 possession of the thing, a real agreement as to the creation of the pledge 
 is sufficient. The delivery of a thing which is in the indirect possession 
 of the owner may be replaced by the owner transferring the indirect 
 possession to the pledgee and notifying the pledge to the possessor." 
 
 1228. "The satisfaction of the pledgee out of the thing pledged is 
 effected by sale. The pledgee is entitled to sell the thing pledged as 
 soon as the claim is due in whole or in part. If the object owed is not 
 money, the sale is permissible only if the claim has been transmuted into 
 a money claim." 
 
 1229. "An agreement made before the right to sell has arisen whereby 
 the ownership of the thing is to pass or is to be transferred to the 
 pledgee if satisfaction is not made, or is not made in due time, is void." 
 
 1235. "The sale of the thing pledged is to be effected by means of 
 public auction." But if it has an exchange or market value it may be 
 sold at private sale at the current price. A month's warning to the 
 pledgor prior to the sale is required. 
 
 1259. "The special provisions of 1260 to 1271 apply to a pledge affecting 
 a ship entered in the ship register." 
 
 1260, "For the grant of such a pledge a real agreement between the 
 owner of the ship and the creditor that the pledge shall belong to the 
 creditor, and an entry of the pledge in the ship register, are necessary. . . . 
 
 "In the registration must be stated the name of the creditor, the amount 
 in money of the claim, and, if the claim bears interest, the rate of interest. 
 For the detailed description of the claim, reference may be made to the 
 authorization for registration." 
 
 1268. "The pledgee may seek satisfaction out of the ship and its ac- 
 cessories only by virtue of an executory title according to the provisions 
 applicable to compulsory execution." 
 
 Second Title. Pledge of Rights. 
 
 1273. "A right can also be the object of pledge. The provisions relat- 
 ing to pledge of moveables apply mutatis mutandis to pledge of rights in 
 so far as a contrary intention does not appear from 1274 to 1296." 
 
II 66 APPENDIX 
 
 1274. "The i:rant of a pledge of a right is effected according to the 
 provisions applicable to the transfer of rights. If for the transfer of the 
 r g..t the delivery of a thing is necessary, the provisions of 1205, 1206 
 apply. So long as a right is not transferable, a pledge of the right may 
 not be granted." 
 
 Family Law 
 
 First Section. Civil Marriage. 
 First Title. Betrothal. 
 
 1297. "No action can be brought upon a betrothal for the fulfilment of 
 the promise to marry. A promise to pay a penalty in case of non-fulfil- 
 ment of the promise is void." 
 
 1298. "If a betrothed person withdraws from the betrothal, he (or 
 she) shall compensate the other party to the betrothal, the latter's parents,, 
 and any third parties who have acted in loco parentis, for any damage 
 caused by their having incurred outlay or obligations in expectation of 
 the marriage. He shall also compensate the other party to the betrothal 
 for any damage which the latter suffers through having, in expectation 
 of the marriage, taken other measures affecting his (or her) property 
 or employment. The damage shall be made good only in so far as the 
 incurring of the outlay or obligations and the other measures were 
 reasonable under the circumstances. The duty to make compensation 
 does not arise if a grave reason for the withdrawal exists." 
 
 Second Title. Conclusion of Marriage, 
 
 1303. "A man may not marry before attaining majority; a woman may 
 not marry before the completion of her sixteenth year of age. Dispensa- 
 tion from this provision may be granted to a woman." The approval of 
 the parent or guardian is required for those lacking disposing capacity or 
 under age." 
 
 1310. "A marriage cannot be concluded between relatives by blood in the 
 direct line, nor between brothers and sisters of full blood or half blood, 
 nor between relatives by marriage in the direct line. A marriage cannot 
 be concluded between persons one of whom has had sexual intercourse 
 with parents, grandparents, or descendants of the other. Relationship by 
 blood, within the meaning of these provisions, exists also between an 
 illegitimate child and his descendants on the one side, and the father and 
 his relatives by blood on the other side." 
 
 1317. "The marriage is concluded by the parties to the betrothal, 
 personally and simultaneously present, declaring before a registrar their 
 intention to enter into wedlock with each other. The registrar must be 
 ready to receive the declarations. The declarations cannot be made sub- 
 ject to any condition or limitation of time." 
 
 Third Title. Void and Voidable Marriages. 
 
 1324. "A marriage is void if in the conclusion of the marriage the 
 form prescribed in 1317 has not been observed." But if entered in the 
 
CIVIL CODE OF GERMANY . 1167 
 
 marriage register and followed by cohabitation ten years or three years 
 and until one of them dies it is validated. 
 
 A marriage is void if one of the parties was incapable of disposing, 
 married to another, or if they are related within the prohibited degrees. 
 
 It may be avoided if procured by mistake of identity, fraud or duress. 
 
 Fourth Title. Re-marriage in case of Declaration of Death. 
 
 1348. "If one spouse, after the other spouse has been declared dead, 
 concludes a new marriage, the new marriage is not void merely because 
 the spouse declared dead is still alive, unless both spouses at the con- 
 clusion of the marriage knew that he (or she) was living at the time 
 of the declaration of death. 
 
 "Upon the conclusion of the new marriage the former marriage is 
 dissolved. It remains dissolved even if the declaration of death is re- 
 voked in consequence of an action to set it aside." 
 
 Fifth Title. Effects of Marriage in General. 
 
 1354. "The right to decide in all matters affecting the common conjugal 
 life belongs to the husband ; he determines especially the place of abode 
 and the dwelling. 
 
 "The wife is not bound to conform to the decision of the husband if the 
 decision appears to be an abuse of his right." 
 
 Sixth Title. Matrimonial Regimes. 
 
 1363. "By the conclusion of the marriage the property of the wife be- 
 comes subject to the management and usufruct by the husband. Con- 
 tributed property includes also the property which the wife acquires 
 during the marriage." 
 
 1365. "The management and usufruct by the husband does not extend 
 to the separate property of the wife." 
 
 Separate property includes clothing, ornaments, property acquired from 
 her labor or business, that so declared in the marriage contract, that ac- 
 quired by succession or legacy. 
 
 1389. "The husband shall bear the expenses of the joint household. In 
 so far as the net income of the contributed property is necessary for the 
 maintenance of the husband and of the wife and the descendants of the 
 marriage, she may require him to spend the net income for such main- 
 tenance without regard to his other obligations." 
 
 1391. "If it is to be apprehended, owing to the conduct of the husband, 
 that the rights of the wife will be infringed in a manner seriously en- 
 dangering the contributed property, she may require her husband to give 
 security." 
 
 1395. "The wife requires the approval of the husband for making any 
 disposition affecting the contributed property." 
 
 If the husband consents to her carrying on a separate business further 
 consent to transactions in such business is unnecessary. 
 
 1410. "Creditors of the husband may not demand satisfaction out of 
 the contributed property." 
 
ii68 APPENDIX 
 
 property : 
 
 (i) The liabilities of the wife arising from any unlawful act com- 
 mitted by her during the marriage, or arising from any criminal pro- 
 ceedings instituted against her on account of such an act; 
 
 (2) The liabilities of the wife arising from any legal relation affecting 
 her separate property, even if they have arisen before the date of the 
 marriage or before the time at which the property became separate 
 property ; 
 
 (3) The cos-ts of any action to which the wife is a party relating to 
 any of the liabilities specified in (i) and (2). 
 
 1427. "The husband shall bear the expenses of the joint household. 
 For defraying the expenses of the joint household the wife shall make 
 a reasonable contribution to her husband out of the income of her prop- 
 erty, and the earnings of her work, or of any separate business carried on 
 by her. The husband may claim contribution in respect of past expenses 
 only in so far as such contribution was in arrear after demand made by 
 the husband. This claim of the husband is not transferable." 
 II. — Contractual Regimes 
 
 1432. "Both spouses may regulate their property relations by contract, 
 and may also terminate or modify the matrimonial regime even after 
 the date of the marriage." 
 
 1434. "A marriage contract must be entered into before a court or a 
 notary in the presence of both parties simultaneously." 
 
 1443. "The common property is subject to the management of the 
 husband. The husband is also entitled to take possession of all things 
 forming part of the common property or to dispose of such property, 
 or to bring actions relating to such property in his own name. By the 
 husbands acts of management the wife is personally bound neither to 
 third parties nor to her husband." 
 
 1445. "The husband requires the approval of his wife for disposal of 
 any land forming part of the common property, or for incurring an 
 obligation to make such a disposition." 
 
 1449. "If the husband disposes of any right forming part of the common 
 property without the necessary consent of his wife, she may enforse such 
 right in Court against third parties without the concurrence of the 
 husband." 
 
 1483. "If any descendants of the marriage are living at the time of 
 the death of one of the spouses, the community of goods is continued 
 between the surviving spouse and- the descendants of the marriage who 
 would be entitled to inherit in case of statutory succession. The share 
 of the deceased spouse in the common property does not belong to his 
 (or her) estate in this case; for the rest the succession to the spouse 
 takes place according to the general provisions. 
 
 "If there are other descendants besides the descendants of the mar- 
 riage, their rights to inherit and their shares in the estate are determined 
 
CIVIL CODE OF GERMANY 1169 
 
 in such manner as if the continued community of goods had not been 
 created." 
 
 1526. "Separate property of the wife includes that which has been 
 declared to be separate property in the marriage contract, or is acquired 
 by the wife under 1369 or 1370. 
 
 The husband does not have separate property. 
 
 The same rules which apply to the separate property under the regime 
 of general community of goods apply to the separate property of the 
 wife." 
 
 1527. "It is presumed that the property existing at any time is com- 
 mon property." 
 
 1529. "The expenses of the joint household are borne by the common 
 property. The common property also bears the charges upon the con- 
 tributed property of both spouses; the extent of such charges is de- 
 termined according to the provisions of 1384 to 1387, applicable to the 
 contributed property of the wife under the regime of management and 
 usufruct." 
 
 1550. "The contributed property of a spouse is excluded from the 
 common property." 
 
 1558. "Entries in the marriage property register shall be made in the 
 District Court in whose district the husband has his domicile." 
 
 .Paragraphs 1363 to 1563 deal with property rights and pecuniary obli- 
 gations growing out of the marriage relation. To an American lawyer 
 the subject of the charges against the separate property of the wife, the 
 property contributed by each and the common property appears to be 
 treated in very minute detail and with many very indefinite provisions. 
 
 Seventh Title. Divorce. 
 
 A marriage may be dissolved on any one of the following grounds 
 
 Adultery or any act punishable under 171,175 of the Criminal Code. 
 
 An attempt against the complaining party's life. 
 
 Wilful desertion for one year. 
 
 Grave breach of marital duty by dishonest or immoral conduct or gross 
 ill-treatment. 
 
 Insanity continuing for three years without hope of recovery. 
 
 Divorce is granted by judicial decree and the petition for it must be 
 filed within six months after the petitioner had knowledge of the 
 ground for it. 
 
 Second Section. Relationship. 
 
 First Title. General Provisions. 
 
 Second Title. Legitimate Descent. 
 
 1591. "A child born after the conclusion of a marriage is legitimate, if 
 the wife conceived the child before or during the marriage, and the 
 husband cohabited with the wife within the period of possible conception. 
 The child is not legitimate if it is evidently impossible under the cir- 
 cumstances that the wife has conceived the child by the husband." . . . 
 
I I/O APPEXDIX 
 
 1592. "The period of possible conception is the period between the 
 181 St day and the 302nd day, both inclusive, before the day of the birth 
 of the child." . . . 
 
 1593- "The illegitimacy of a child born during the marriage or within 
 302 days after the dissolution of the marriage, may not be set up unless 
 the husband has repudiated the legitimacy, or has died without having 
 lost the right of repudiation." 
 
 Third Title. Duty to Furnish Maintenance. 
 
 1601. "Persons related by blood in the direct line are bound to furnish 
 maintenance to one another." 
 
 1602. "A person is entitled to maintenance only if he is not in a po- 
 sition to maintain himself. 
 
 "An unmarried minor child may, even if he has property, claim main- 
 tenance from his parents in so far as the income of his property and the 
 earnings of his work are not sufficient for his maintenance." 
 
 1606. "Descendants are liable to furnish maintenance before relatives 
 by blood in the ascending line are liable. The descendants' duty to 
 furnish maintenance is determined according to the statutory order of 
 succession and according to their respective shares in the inheritance. 
 
 "Among relatives by blood in the ascending line those of nearer degree 
 are liable before those of remoter degree; relatives of the same degree 
 are liable in equal shares. The father is, however liable before the 
 mother; if the mother has the right of usufruct of her childs property 
 she is liable before the father is liable." 
 
 Fourth Title. Legal Status of Legitimate Children. 
 
 1626. "A child is under parental power so long as he is a minor." 
 
 1627. "A father has, by virtue of his parental power, the right and the 
 duty to take care of his child's person and property." 
 
 In the management of the child's property the parent is subject to the 
 direction of the Guardianship Court as to matters of importance. 
 
 1684. "The parental power belongs to the mother: 
 
 (i) If the father has died, or has been declared dead; 
 (2) If the father has forfeited the parental power and the marriage 
 has been dissolved. 
 
 In the case of declaration of death the parental power of the mother 
 begins at the date which is deemed to be the date of death." 
 
 Fifth Title. Legal Status of Children Born of Void Marriages. 
 
 1699. "A child born of a void marriage who, if the marriage were 
 valid, would have been legitimate, is deemed to be legitimate in so far 
 as both spouses did not know at the time of the marriage that the mar- 
 riage was void. The provision does not apply if the marriage was void 
 owing to some defect in form, and the marriage has not been entered in 
 the marriage register." 
 
 Sixth Title. Legal Status of Illegitimate Children. 
 
 1705. "An illegitimate child has the legal status of a legitimate child 
 in respect of his mother and her relatives by blood." 
 
CIVIL CODE OF GERMAXY. 1171 
 
 1708. "The father of an illegitimate child is bound to furnish the 
 child, until the completion of his sixteenth year of age, maintenance 
 suitable to the mother's station in life. Maintenance includes all the 
 necessaries of life and the expenses of education and of preparation for 
 a profession." . . . 
 
 Seventh Title. Legitimation of Illegitimate Children. 
 
 1719. "An illegitimate child acquires, by reason of the fact that the 
 father marries the mother, the legal status of a legitimate child from 
 and after the celebration of the marriage." 
 
 1723. "An illegitimate child may, upon the application of the father, be 
 declared legitimate by order of the public authority." 
 
 1726. "For the declaration of legitimation the approval of the child 
 and, if the child has not completed his twenty-first year of age, the ap- 
 proval of the mother are necessary. If the father is married, he requires 
 also the approval of his wife. . . ." 
 
 Eighth Title. Adoption. 
 
 1 74 1. "A person who has no legitimate descendants may adopt another 
 by contract wnth the latter. Such a contract requires the confirmation of 
 the competent Court." 
 
 1744. "The adoptor must have completed his fiftieth year of age, and 
 must be at least 18 years older than the adopted child." This requirement 
 is subject to dispensation. 
 
 Third Section. Guardianship. 
 
 First Title. Guardianship over Minors. 
 
 This title contains very full and detailed provisions for the appoint- 
 ment of guardians by the Guardianship Court, the management of the 
 affairs of the ward and the supervision of the Court. 
 
 1858. "A family council shall be established by the Guardianship Court, 
 if the father or the legitimate mother of the ward has directed its 
 establishment. . . ." 
 
 i860. "A family council consists of the judge of the Guardianship 
 Court as president, and no less than two nor more than six members." 
 
 1872. "A family council has the rights and the duties of the Guardian- 
 ship Court. The duty to conduct its affairs is imposed upon the presi- 
 dent. Members of a family council may exercise their functions only 
 in person. They are responsible in the same manner as a judge of a 
 Guardianship Court." 
 
 Second Title. Guardianship over Persons of Full Age. 
 
 1896. "If a person of full age has been interdicted, a guardian is ap- 
 pointed for him," 
 
 1897. "Except so far as a contrary intention appears from 1898 to 1908, 
 the provisions applicable to guardianship over a minor apply to guardian- 
 ship over a person of full age." 
 
 Third Title. Curatorship. 
 
 1909. "A curator is appointed for a person under parental power or 
 
1 172 APPENDIX 
 
 guardianship, to take charge of the affairs of which the parent or guar- 
 dian is prevented from taking charge. . . ." 
 
 A curator may also be appointed for a person of full age who is 
 unable to take care of his own affairs. 
 
 Law of Inheritance 
 
 Fifth Book. First Section. Order of Succession. 
 
 Heirs are divided into the following classes : 
 
 First, Descendants of the deceased. 
 
 Second, Parents of the deceased and their descendants. 
 
 Third, Grandparents of the deceased and their descendants. 
 
 Fourth, Great granparents and their descendants. 
 
 Fifth, and subsequent classes, remoter ancestors and their descendants. 
 
 Children inherit in equal shares, and the descendants of a deceased 
 child take per stirpes. Parents inherit in equal shares. Heirs of the 
 second and third classes take also by representation and on the principle 
 of equality among those standing in the same position. 
 
 1930. "A relative by blood is not entitled to inherit so long as there is 
 a relative by blood of a preceding class." 
 
 193 1. "The surviving spouse of the deceased, in the capacity of statu- 
 tory heir, is, concurrently with relatives by blood of the first class, en- 
 titled to one fourth the inheritance, or, concurrently with relatives hy 
 blood of the second class or grandparents, to one half of the inheritance. 
 H there are both grandparents and descendants of the grandparents, the 
 spouse takes also the share in the other half which would devolve upon 
 such descendants as provided for in 1926. If there are neither relatives 
 by blood of the first or second class nor grandparents, the spouse takes 
 the whole inheritance." 
 
 Second Section. Legal Status of an Heir. 
 
 First Title. Acceptance and Disclaimer of an Inheritance. — Supervision 
 of the Probate Court. 
 
 1942. "An inheritance passes to the heir entitled to inherit, subject ta 
 his right of disclaiming it. The Treasury may not disclaim an inheritance 
 devolving upon it as statutory heir." 
 
 Second Title. Liability of an Heir for the Liabilities of the Estate, 
 
 1967. "An heir is liable for the liabilities of the estate. 
 
 The liabilities of the estate include not only the debts incurred by the 
 deceased, but also the obligations imposed upon the heir as such, e.g.. 
 the obligations arising from any rights to compulsory portions, legacies- 
 and testamentary burdens." 
 
 1968. "The heir bears the funeral expenses of the deceased suitable- 
 to the latters station in life." 
 
 1975. "The liability of an heir for the liabilities of an estate is limited 
 to the estate, if a curatorship over the estate has been established for the- 
 
CIVIL CODE OF GERMANY 1173 
 
 satisfaction of the creditors of the estate (i.e., administration of the 
 estate), or if bankruptcy proceedings have been instituted against the 
 estate." 
 
 1994. "The Probate Court shall, upon the application of a creditor of 
 the estate, fix a period for the heir to file the inventory. After the ex- 
 piration of the period the heir is liable without limitation for the liabili- 
 ties of the estate unless an inventory has been filed within such period. 
 The applicant shall offer prima facie proof of his claim. The validity 
 of the fixing of the period is not affected by the fact that the claim 
 proves to be non-existent." 
 
 2007. "If an heir is entitled to several shares in the inheritance, his 
 liability for the liabilities of the estate in respect of each of the shares 
 is determined just as if the shares belonged to different heirs. In cases 
 of the right of accrual and in those provided for by 1935 this applies only 
 where the shares are unequally charged." 
 
 Third Title. Petitio Hereditatis. 
 
 This title deals with the recovery of the estate by the heir from those 
 in possession of it. 
 
 Fourth Title. Plurality of Heirs. 
 
 2032. "If the deceased leaves several heirs, the estate becomes the 
 common property of the heirs." 
 
 2033. "Each co-heir may dispose of his share in the estate. A contract 
 whereby a co-heir disposes of his share requires judicial or notarial 
 authentication. A co-heir may not dispose of his share in the indi- 
 vidual objects belonging to the estate." 
 
 2034. "If a co-heir sells his share to a third party, the other co-heirs 
 are entitled to preemption. The period for the exercise of the right 
 of preemption is three months. The right of preemption passes by 
 inheritance." 
 
 2058. "The heirs are liable as joint debtors for the common liabilities 
 of the estate." 
 
 Third Section. Wills. 
 
 First Title. General Provisions. 
 
 2064. "A person may make a will only in person." 
 
 This title deals with the construction to be given to certain gifts, the 
 presumptions attending them and the avoidance of testamentary dispo- 
 sitions. 
 
 Second Title. Appointment of Heirs. 
 
 2087. "If a testator has bequeathed his property or an aliquot part of 
 his property to a beneficiary, the disposition is deemed to be the ap- 
 pointment of an heir even if the beneficiary has not been named as an 
 heir. 
 
 "If particular objects only have been given to the beneficiary, it is not 
 to be presumed, in case of doubt, that he is to be an heir, even if he has 
 been named as an heir." 
 
 2088. "If a testator has appointed only one heir, and if the appoint- 
 
1 174 APPENDIX 
 
 merit is limited to an aliquot part of the inheritance, the statutory suc- 
 cession takes place in respect of the other parts. The same rule applies, 
 if the testator has appointed several heirs with a limitation of each to 
 an aliquot part, and the parts do not exhaust the whole inheritance." 
 
 Third Title. Appointment of Reversionary Heirs. 
 
 2 ICO. "A testator may appoint an heir in such manner that the latter 
 does not become an heir until after another person has previously become 
 an heir." 
 
 This paragraph is followed by forty-six others dealing in detail with 
 the rights and liabilities of limited and reversionary heirs. 
 
 Fourth Title. Legacies. 
 
 2147. "An heir or a legatee may be charged with a legacy. Unless the 
 testator has otherwise provided, the heir is deemed to have been charged." 
 
 21150. "A legacy given to an heir (a preferential legacy) is deemed to 
 be a legacy even if the heir himself is charged therewith." 
 
 2160. "A legacy is inoperative if the legatee was not living at the time 
 of the accrual of the inheritance." 
 
 Fifth Title. Testamentary Burdens. 
 
 Sixth Title. Executors. 
 
 2197. "A testator may by will appoint one or more executors. The 
 testator may appoint a substitutional executor to act in the event of the 
 original appointee failing or ceasing to be an executor before or after 
 acceptance of the office." 
 
 2205. "The executor shall administer the estate. He is entitled to take 
 possession of the estate and to dispose of any objects belonging thereto. 
 He is entitled to make gratuitous dispositions only so far as they are 
 made in compliance with a moral duty or the rules of social propriety." 
 
 221 1. "The heir may not dispose of any object belonging to the estate 
 subject to the administration of the executor. The provisions in favor 
 of those who derive rights from a person without title apply mutatis 
 mutandis." 
 
 2212. "A right subject to the administration of the executor may be 
 enforced in court only by the executor." 
 
 2214, "'Creditors of the heir who are not creditors of the estate may 
 not have recourse to objects belonging to the estate subject to the ad- 
 ministration of the executor." 
 
 Seventh Title. The Making and Revocation of a Will. 
 
 2229. "A person who is limited in disposing capacity does not require 
 the consent of his statutory agent for making a will. A minor may not 
 make a will until he has completed his sixteenth year of age. A person 
 who is interdicted on account of feeble-mindedness, prodigality or drunk- 
 enness, may not make a will. Such incapacity begins immediately on 
 the presentation of the application, by virtue of which the interdiction 
 takes place." 
 
 2231. "A will may generally be made in the following manner: 
 (i) Before a judge or notary; 
 
CIVIL CODE OF GERMANY 1175 
 
 (2) By a declaration of the testator, written and signed with his own 
 hand, stating the place where and the date at which it is made." 
 2233. "In superintending the making of a will, the judge must be at- 
 tended by a registrar or by two witnesses; the notary must be attended 
 by another notary or by two witnesses." 
 
 2238. "The will shall be made in the following manner : The testator 
 either makes an oral declaration of his last will to the judge or notary, 
 or delivers to him a written statement accompanied by an oral declara- 
 tion that the written statement contains his last will. The written state- 
 ment may be delivered open or sealed. It may be written by the testator 
 himself or by any other person. A minor or a person who cannot read 
 may make a will only by oral declaration." 
 
 2239. "All persons taking part in superintending the making of a will 
 must be present during the whole proceedings." 
 
 2240. "A protocol relating to the making of the will must be drawn up 
 in the German language." 
 
 2241. "The protocol must contain — 
 
 (i) The name of the place and date of the proceedings; 
 
 (2) The names of the testator and of all persons taking part in the 
 proceedings ; 
 
 (3) The declarations of the testator required by 2238, and, where a 
 written statement is delivered, the fact that the written statement 
 has been delivered." 
 
 2242. "The protocol must be read out to and ratified by the testator, and 
 signed by him with his own hand. In the protocol the fact that this has 
 been done must be recorded. The protocol should on demand be laid 
 before the testator for his perusal. 
 
 "If the testator declares that he cannot write, a record of such declara- 
 tion in the protocol is substituted for his signature. The protocol must 
 be signed by all the persons taking part in the proceeding." 
 
 2253. "A will or any particular dispositions contained therein may be 
 revoked by the testator at any time. 
 
 "Interdiction of the testator on account of feeble-mindedness, prodi- 
 gality, or habitual drunkenness does not prevent the revocation of a will 
 made before the interdiction." 
 
 Eighth Title. Joint Wills. 
 
 2265. "A joint will may be made only by a married couple." 
 
 2272. "A joint will may be withdrawn from official custody only by 
 both spouses in the manner provided for by 2256." 
 
 Fourth Section. Contract of Inheritance. 
 
 2278. "Each of the parties to a contract of inheritance may make con- 
 tractual dispositions mortis causa. 
 
 "Dispositions other than those relating to the institution of an heir, 
 legacies, and testamentary burdens may not be made." 
 
 2286. "The right of the testator to dispose of his property by juristic 
 act inter vivos is not limited by a contract of inheritance." 
 
1 1 76 APPENDIX 
 
 2299. "Either of the contracting parties may unilaterally make any 
 disposition in the contract of inheritance which may be made by will. 
 To such a disposition the same applies as if it had been made by will. 
 The disposition may also be revoked by any contract whereby a con- 
 tractual disposition may be revoked. Where the contract of inheritance 
 is revoked by the exercise of the right of rescission or by contract, the 
 disposition is thereby invalidated, unless the contrary intention of the 
 testator is to be inferred." 
 
 Fifth Section. Compulsory Portion. * 
 
 2303. "If a descendant of a testator is excluded from succession by 
 disposition mortis causa, he may demand his compulsory portion from the 
 heir. The compulsory portion is equal to one-half the statutory portion. 
 The same right belongs to the parents and spouse of the testator, if 
 they have been excluded from succession by a disposition mortis causa." 
 
 2305. "If a share in the inheritance has been left to a compulsory bene- 
 ficiary which is less than one-half of his statutory portion, the compulsory 
 beneficiary may claim the deficiency from his co-heirs as his compulsory 
 portion." 
 
 2333- "A testator may deprive a descendant of his compulsory portion — 
 (i) If the descendant makes an attempt against the life of the tes- 
 tator, or of his spouse, or of any of his descendents ; 
 
 (2) If the descendant has been guilty of wilful corporal illtreatment 
 of the testator or his spouse; in the case of illtreatment of his 
 spouse, however, only where the descendant is also descended 
 from such spouse; 
 
 (3) If the descendant has been guilty of any crime, or any serious 
 wilful offense against the testator or his spouse; 
 
 (4) If the descendant maliciously commits a breach of his statutory 
 duty to furnish maintenance to the testator; 
 
 (5) If the descendant leads a dishonorable or immoral life contrary 
 to the testator's wishes." 
 
 2334. "A testator may deprive his father of his compulsory portion if 
 the latter has been guilty of any of the offenses specified in 2333 (i), 
 (3). (4)- The testator has the same right against his mother if she has 
 been guilty of any such offense." 
 
 2335. "A testator may deprive his (or her) spouse of his (or her) 
 compulsory portion if the spouse is guilty of an offence by virtue of 
 which the testator is entitled to petition for divorce as provfded for in 
 1565 to 1568." 
 
 Sixth Section. Unworthiness to Inherit. 
 
 2339. "A person is unworthy to inherit — 
 
 (i) Who has wilfully and unlawfully killed or attempted to kill the 
 testator, or has brought him to a condition in consequence of 
 which the \ testator has become incapable, down to the date of 
 his death, of making or revoking a disposition mortis causa; 
 
CIVIL CODE OF GERMANY ii77 
 
 (2) Who has wilfully and unlawfully prevented the testator from 
 making or revoking a disposition mortis causa; 
 
 (3) Who has, by fraud or unlawful threats, induced the testator to 
 make or revoke a disposition mortis causa; 
 
 (4) Who has, in respect of a disposition mortis causa made by the 
 testator, been guilty of any act punishable under the provisions 
 of 267 to 274 of the Criminal Code. . . ." 
 
 Seventh Section. Renunciation of Inheritance. 
 
 2348, "A contract of renunciation requires judicial or notarial 
 authentication." 
 
 Eig'hth Section. Certificate of Inheritance. 
 
 2353. "The Probate Court shall issue to the heir on demand a certifi- 
 cate relating to his right of inheritance, and, where he is entitled only to 
 a share in the inheritance, relating to the value of his share." 
 
 2359. "The certificate of inheritance may be issued only if the Probate 
 Court holds that the facts necessary to support the application have been 
 established." 
 
 Ninth Section. Purchase of an Inheritance. 
 
 2371. "A contract whereby an heir sells the inheritance which has 
 devolved on him, requires judicial or notarial authentication." 
 
 ******* 
 
 In testimony whereof We have signed with Our own hand and have 
 affixed fhe Imperial Seal. 
 
 Given in the New Palace, the i8th day of August, 1896. 
 
 WILLIAM, 
 
 Prince of Hohenlohe. 
 
 On the same day an Introductory Act was also promulgated providing 
 that the Civil Code should take effect on January i, 1900. And also The 
 Act relating to Alterations in the Act for the Organization of the Ju- 
 diciary, The Code of Civil Procedure and the Bankruptcy Act; the Act 
 Relating to Compulsory Auction and Compulsory Management; the Land 
 Registration Act, and the Voluntary Jurisdiction Act. This act contains 
 many important provisions concerning the application of the Civil Code to 
 aliens and to the validity of the laws of the States included within the 
 Empire. 
 
MAGNA CHARTA 
 
 John, by the grace of God King of England, Lord of Ireland, Duke of 
 Nprmandy and Aquitaine, and Earl of Anjou: To the Archbishops 
 Bishops, Abbots, Earls, Barons, Justiciaries, the Foresters, Sheriffs, 
 Governors, Officers, and to all Bailiffs and other faithful subjects, 
 greeting : 
 
 Know that we, in the presence of God, and for the health of our soul 
 and the souls of our ancestors and heirs, to the honor of God, and the 
 exaltation of the holy Church, and amendment of our kingdom, by the 
 advice of our venerable fathers, Stephen, Archbishop of Canterbury, 
 primate of all England and cardinal of the holy Roman Church, Henry, 
 archbishop of Dublin, William, bishop of London; Peter of Winchester, 
 Jocelin of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, 
 William of Coventry, Benedict of Rochester, bishops; and Master Pan- 
 dulph the Pope's sub-deacon and ancient servant brother; Aymeric, 
 master of the temple in England; and the noble persons — William Mare- 
 schal, Earl of Pembroke, William, Earl of Salisbury; William, Earl of 
 Warren; William, Earl of Arrundel; Alan de Galoway, constable of 
 Scotland ; Warin Fitz-Gerald ; Peter Fitz-Herbert, and Hubert De Burgh, 
 seneschal of Poictou; Hugo de Neville, Matthew Fitz-Herbert, Thomas 
 Basset, Alan Basset, Philip de Albiney, Robert de Roppele, John Mare- 
 scall, John Fitz-Hugh, and others, our liege men, — have in the first place 
 granted to God and by this our present charter confirmed for us and 
 our heirs forever. 
 
 L The Church of England shall be free and enjoy her whole rights and 
 liberties inviolable. And we will have them to be so observed, which 
 appears from hence ; that the freedom of elections, which was reckoned 
 most necessary for the Church of England, of our own free will and 
 pleasure we have granted and confirmed by our charter, and obtained 
 the confirmation from Pope Innocent III, before the discord between us 
 and our barons, which charter we shall observe and do will it to be 
 faithfully observed by our heirs forever. 
 
 II. We have also granted to all the freemen of our kingdom, for us 
 and for our heirs forever, all the unwritten liberties to have, and to hold, 
 them and their heirs of us and our heirs. 
 
 III. If any of our earls or barons, or others who hold of us in chief by 
 military service, shall die, and at the time of his death his heir is of full 
 age and owes a relief, he shall have his inheritance by the ancient relief, 
 that is to say, the heir or heirs of an earl for a whole earl's barony, by a 
 hundred pounds; the heir or heirs of a baron, for a whole barony, by a 
 hundred pounds; the heir or heirs of a knight, for a Whole knights fee, 
 by a hundred shillings at most, and he that oweth less shall give less, 
 according to the ancient custom of fees. 
 
 1 178 
 
MAGNA CHART A 1179 
 
 IV. If the heir of any such be under age, and shall be in ward, when 
 he comes of age, he shall have his inheritance without relief or fine. 
 
 V. .The warden of the land of such heir who shall be under age shall 
 take of the land of such heir only reasonable issues, reasonable customs, 
 and reasonable services ; and that without destruction and waste of the 
 men or things (upon the estate) : and if he commit the guardiansliip of 
 those lands to the sheriff, or any other, who is answerable to us for the 
 issues of the land, we will compel him to give satisfaction and the land 
 shall be committed to two lawful and discreet tenants of that fee, who 
 shall be answerable for the issues to us or to him whom we shall assign. 
 And if we give or sell the wardship of any such lands to any one, and he 
 shall make destruction or waste upon them, he shall lose the wardship, 
 which shall be committed to two lawful and discreet tenants of that fee, 
 who shall in like manner be answerable to us, as hath been said. 
 
 VI. But the warden so long as he has the wardship of the land, shall 
 keep up and maintain the houses, parks, warrens, ponds, mills, and other 
 things pertaining to the land, out of the issues of the same land; and 
 shall restore to the heir, when he comes of full age, the whole land 
 stocked with ploughs and carriages, according as the time of wainage 
 shall require and the issues of the land can reasonably bear. 
 
 VII. Heirs shall be married without disparagement (so as that before 
 matrimony shall be contracted those who are nearest to the heir in 
 blood shall be made acquainted witji it). 
 
 VIII. A widow after the death of her husband, shall forthwith and 
 without any difficulty have her marriage and her inheritance; nor shall 
 she give anything for her dower or her marriage or her inheritance which 
 her husband and she held at the day of his death. And she may remain 
 in the capital messuage or mansion house of her husband forty days 
 after his death, within which time her dower shall be assigned. 
 
 IX. No widow shall be distrained to marry herself, so long as she 
 has a mind to live without a husband. But yet she shall give security 
 that she will not marry without our assent, if she holds of us; or 
 without the consent of the lord of whom she holds, if she holds of 
 another. 
 
 X. Neither we nor our bailiffs shall seize any land or rent for any 
 debt, so long as there shall be chattels of the debtor upon the premises 
 sufficient to pay the debt, nor shall the sureties of the debtor be dis- 
 trained, so long as the principal debtor is sufficient for the payment of 
 the debt. 
 
 XI. And if the principal debtor fail in the payment of the debt, not 
 having wherewithal to discharge it, then the sureties shall answer the 
 debt, and if they will they shall have the lands and rents of the debt, or 
 until they shall be satisfied for the debt which they paid for him; unless 
 the principal debtor can show himself acquitted thereof against the said 
 sureties. 
 
ii8o APPENDIX 
 
 XII. If anyone have borrowed anything of the Jews, more or less, and 
 dies before the debt be satisfied, there shall be no interest paid for that 
 debt, so long as the heir is under age, of whomsoever he may hold. And 
 if the debt falls into our hands, we will take only the chattels mentioned 
 in the charter or instrument. 
 
 XIII. And if anyone shall die indebted to the Jews, his wife shall have 
 her dower and pay nothing of that debt; and if the deceased left chil- 
 dren under age, they shall have necessaries provided for them according 
 to the tenement of the deceased, and out of the residue the debt shall be 
 paid; saving however the service of the lords. In like manner let it be 
 with the debts due to other persons than the Jews. 
 
 XIV. No scutage or aid shall be imposed in our kingdom, unless by the 
 common council of our kingdom, except to redeem our person, and to 
 make our eldest son a knight, and once to marry our eldest daughter ; and 
 for this there shall only be paid a reasonable aid. 
 
 XV. In like manner it shall be concerning the aids of the city of 
 London; and the city of London shall have all of its ancient liberties and 
 free customs, as well by land as by water. 
 
 XVI. Furthermore, we will and grant that all other cities and boroughs 
 and towns and ports shall have all their liberties and free customs and 
 shall have the common council of the kingdom concerning the assessment 
 of their aids, except in the three cases aforesaid. 
 
 XVII. And for the assessing of scutages we shall cause to be sum- 
 moned the archbishops, bishops, abbots, earls, and great barons of the 
 realm, singly by our letters. 
 
 XVIII. And furthermore we shall cause to be summoned, in general 
 by our sheriffs and bailiffs, all others who hold of us in chief at a 
 certain day; that is to say, forty days before their meeting, at least, to a 
 certain place; and in all letters of such summons we will declare the 
 cause of the summons. 
 
 XIX. And summons being thus made, the business shall proceed, on the 
 day appointed, according to the advice of such as shall be present, al- 
 though all that were summoned come not. 
 
 XX. We will not for the future grant to anyone that he may take aid 
 of his own free tenants, unless to redeem his body, and to make his 
 eldest son a knight, and once to marry his eldest daughter; and for this 
 there shall only be paid a reasonable aid. 
 
 XXI. No man shall be distrained to perform more service for a knights 
 fee or other free tenement, than is due from thence. 
 
 XXII. Common pleas shall not follow our court, but shall be holden in 
 some certain place. Trials upon the writs of novel disseisin, and of mort 
 d'ancestor, and of darrein presentment shall be taken, but in their proper 
 counties, and after this manner; we, or (if we shall be out of the realm) 
 our chief justiciary, shall send two justiciaries through every county 
 four times a year, who, with the four knights chosen out of every shire 
 
MAGNA CHARTA 1181 
 
 by the people, shall hold the said assizes in the county, on the day and 
 at the place appointed. 
 
 XXIII. And if any matters cannot be determined on the day appointed 
 to hold the assizes in each county, so many of the knights and freeholders 
 as bave been at the assizes aforesaid shall be appointed to decide them 
 as is necessary, according as there is more or less business. 
 
 XXIV. A freeman shall not be amerced for a small fault; but accord- 
 ing to the degree of the fault, and for a great crime in proportion to 
 the heinousness of it, saving to him his contenement, and after the same 
 manner a merchant, saving to him his merchandise. 
 
 XXV. And a villein shall be amerced after the same manner, saving 
 to him his wainage, if he falls under our mercy. And none of the 
 aforesaid amercements shall be assessed but by the oath of honest men 
 of the neighborhood. 
 
 XXVI. Earls and barons shall not be amerced but by their peers, and 
 according to the quality of the offense. 
 
 XXVII. No ecclesiastical person shall be amerced but according to the 
 proportion aforesaid, and not according to the value of his ecclesiastical 
 benefice. 
 
 XXVIII. Neither a town nor any person shall be distrained to make 
 bridges over rivers unless anciently and of right they are bound to do it. 
 
 XXIX. No sheriff, constable, coroner, or other our bailiffs shall hold 
 pleas of the crown. 
 
 XXX. All counties, hundreds, wapentakes, and tithings shall stand at 
 the old rents without any increase except in our demesne lands. 
 
 XXXI. If any one that holds of us a lay fee dies, and the sheriff or 
 our bailiff show our letters patent of summons concerning the debt due 
 to us from the deceased, it shall be lawful for the sheriff or our bailiff 
 to attach and register the chattels of the deceased, found upon his lay 
 fee, to the value of the debt, by the view of lawful men so as nothing 
 be removed until our whole debt be paid, and the rest shall be left to 
 the executors to fulfill the will of the deceased. And if there be nothing 
 due from him to us, all the chattels shall remain to the deceased; saving 
 to his wife and children their reasonable shares. 
 
 XXXII. If any freeman die intestate his chattels shall be distributed 
 by the hands of his nearest relations and friends, by view of the church, 
 saving to everyone his debts which the deceased owed. 
 
 XXXIII. No constable or bailiff of ours shall take corn or other chat- 
 tels of any man unless he presently give him money for it or has respite 
 of payment from the seller. 
 
 XXXIV. No constable shall distrain any knight to give money for 
 castle guard, if he himself shall do it in his own person or by another 
 able man, in case he shall be hindered by any reasonable cause. 
 
 XXXV. And if we shall lead him or if we shall send him into the army 
 he shall be free from castle guard for the time he shall be in the army, 
 by our command. 
 
ii82 APPENDIX 
 
 XXXVI. Xo sheriff or bailiff of ours or any other shall take horses 
 or carts of any for cartage. 
 
 XXXVII. Neither shall we or our officers take any man's timber for 
 our castles or other uses, unless by consent of the owner of the timber. 
 
 XXXVIII. We will retain the lands of those convicted of felony but 
 one year and a day, and then they shall be delivered to the lord of the fee. 
 
 XXXIX. All weirs for the time to come shall be demolished in the 
 rivers of Thames and Medway and throughout all England except upon 
 the sea coast. 
 
 XL. The writ which is called praecipe for the future shall not be 
 granted to any one of any tenement whereby a freeman may lose his cause. 
 
 XLI. There shall be one measure of wine and one of ale through our 
 whole realm, and one measure of corn; that is to say, the London- 
 quarter and one breadth of dyed cloth and russets and haberjects; that is 
 to say, to ells within the testa. And the weights shall be as the measures. 
 
 XLI I. From henceforward nothing shall be given or taken for a writ 
 of inquisition from him that desires an inquisition of life or limbs but 
 shall be granted gratis and not denied. 
 
 XLIII. If any one holds of us by fee farm or socage or burgage, and 
 holds lands of another by military service, we will not have the wardship 
 of the heir or land which belongs to another man's fee by reason of 
 what he holds of us by fee farm, socage or burgage. Nor will we have 
 the wardship of the fee farm, socage or burgage, unless the fee farm is 
 bound to perform military service. 
 
 XLIV. We will not have the wardship of an heir, nor of any land 
 which he holds of another by military service, by reason of any petit 
 sergeanty he holds of us, as by the service of giving us daggers, arrows 
 or the like. 
 
 XLV. No bailiff for the future shall put any man to his law upon his 
 single accusation, without credible witnesses produced to prove it. 
 
 XLVI. No freeman shall be taken or imprisoned, or disseized or out- 
 lawed, or banished, or in any wise destroyed, nor will we pass upon him 
 or commit him to prison unless by the legal judgment of his peers or 
 by the law of the land. 
 
 XLVII. We will sell to no man, we will deny to no man, nor defer 
 right and justice. 
 
 XLVIII. All merchants shall have safe and secure conduct to go out 
 of and to come into England, and to stay there; and to pass as well by 
 land as by water, to buy and sell by the ancient and allowed customs, 
 without any evil tolls except in time of war, or when they shall be of 
 any nation at war with us. 
 
 XLIX. And if there shall be found any such in our land, in the begin- 
 ning of a war, they shall be attached without damage to their bodies or 
 goods, until it may be known to us, or our chief justiciary, how our 
 merchants be treated in the nation at war with us, and if ours be safe 
 there they shall be safe in our land. 
 
MAGNA CHART A 1183 
 
 L. It shall be lawful for the time to come for anyone to go out of 
 our kingdom and return safely by land or water, saving his allegiance 
 to us, unless in time of war by some short space for the common benefit 
 of the kingdom; except prisoners and outlaws, according to the law of 
 the land, and people in war with us, and merchants who shall be in such 
 condition as is above mentioned. 
 
 LI. If any man hold of any escheat, as of the manor of Wallingford, 
 Nottingham, Bologne, Lancaster, or of other escheats which are in our 
 hands, and are baronies, and dies, his heirs shall not give any other relief 
 or perform any other service to us than he would to the baron if the 
 barony were in possession of the baron; we will hold it after the same 
 manner the baron held it. 
 
 LII. Those men who dwell without the forest from henceforth shall not 
 come before our justiciaries of the forest upon summons, but such as are 
 impleaded or are pledges for any that were attached for something con- 
 cerning the forest. 
 
 LIII. We will not make any justiciaries, constables, sheriffs, or bailiffs, 
 but what are knowing in the law of the realm and are disposed duly to 
 observe it. 
 
 LIV. All barons who are founders of abbeys and have charters of the 
 king of England for the advowson, or are entitled to it by ancient tenure, 
 may have the custody of these when void, as they ought to have. 
 
 LV. All woods that have been taken into the forests, in our own time 
 shall forthwith be laid out again, and the like shall be done with the 
 rivers that have been taken and fenced in by us, during our reign. 
 
 LVI. All evil customs concerning forests, warrens, and foresters, war- 
 reners, sheriffs and their officers, rivers and their keepers, shall forthwith 
 be inquired into, in each county, by twelve knights of the same shire, 
 chosen by the most creditable persons in the same county and upon 
 oath, and within forty days after the said inquest, be utterly demolished 
 so as never to be restored. 
 
 LVII. We will immediately give up all hostages and engagements de- 
 livered unto us, by our English subjects, as securities for their keeping 
 the peace and yielding us faithful service. 
 
 LVIII. We will entirely remove from our baliwicks the relations of 
 Gerard de Athyes, so as that for the future they shall have no baliwick 
 in England. We will also remove Engelard de Cygony, Andrew, Peter 
 and Gyon from the chancery, Gyon de Cygony, Geoffrey de Martyn and 
 his brothers and his nephew, Geoffrey, and their whole retinue. 
 
 LIX. And as soon as peace is restored we will send out of the kingdom 
 all foreign soldiers, crossbowmen and stipendiaries who are come with 
 horses and arms to the injury of our peace. 
 
 LX. If any one has been dispossessed or deprived by us, without the 
 legal judgment of his peers, of his lands, castles, liberties, or rights 
 we will forthwith restore them to him; and if any dispute arises upon this 
 head, let the matter be decided by the five and twenty barons hereafter 
 mentioned for the preservation of the peace. 
 
ii84 APPENDIX 
 
 LXI. As to all those things of which any person has, without the legal 
 judgment of his peers, been dispossessed or deprived, either by King 
 Henry, our father, or our brother. King Richard, and which we have in 
 our hands, or are possessed by others, and we are bound to warrant 
 and make good, we shall have a respite, till the term usually allowed the 
 croises ; excepting those things about which there is, a suit depending, or 
 whereof an inquest hath been made by our order before we undertook 
 the crusade. But when we return from our pilgrimage, or if we do not 
 perform it, we will immediately cause full justice to be administered 
 therein. 
 
 LXII. The same respite we shall have for disforesting the forest 
 which Henry, our father, or our brother Richard, have afforested ; and 
 for the wardship of the lands which are in another's fee, in the same 
 manner as we have heretofore enjoyed those wardships, by reason of a 
 fee held of us by knight 'service ; and fpr the abbeys founded in any 
 other fee than our own, in which the lord of the fee claims a right. And 
 when we return from our pilgrimage, or if we should not perform it, 
 we will immediately do justice to all the complaints in this behalf. 
 
 LXHI. No man shall be taken or imprisoned upon the appeal of a 
 ■woman for the death of any other man than her husband. 
 
 LXIV. All unjust and illegal fines and all amercements imposed un- 
 justly and contrary to the law of the land shall be entirely forgiven; or 
 else be left to the decision of the five and twenty barons, hereafter men- 
 tioned, for the preservation of the peace, or of the major part of them, 
 together with the aforesaid Stephen, archbishop of Canterbury, if he 
 can be present, and others whom he shall think fit to take along with 
 him ; and if he cannot be present, the business shall notwithstanding go 
 on without him. But so that if one or more of the aforesaid five and 
 twenty barons be plaintiffs in the same cause, they shall be set aside, as 
 to what concerns this particular affair, and others be chosen in their 
 room, out of the said five and twenty, and sworn by the rest to decide 
 that matter. 
 
 LXV. H we have dissiezed or dispossessed the Welsh of any lands, 
 liberties, or other things without the legal judgment of their peers, they 
 shall immediately be restored to them. And if any dispute arise upon this 
 head, the matter shall be determined in the marches by the judgment of 
 their peers; for tenements in England, according to the law of England, 
 for tenements in Wales according to the law of Wales; for a tenement 
 of the marches according to the law of the marches. The same shall 
 the Welsh do to us and our subjects. 
 
 LXVI. As for all those things of which any Welsh man hath, without 
 the legal judgment of his peers, been disseized or deprived by King 
 Henry our father,' or our brother King Richard; and which we either 
 have in our hands or others are possessed of, and we are obliged to 
 warrant it, we shall have a respite till the time generally allowed the 
 croises; excepting those things about which a suit is depending, or 
 
MAGNA CHART A 1185 
 
 whereof an inquest has been made by our order, before we undertook the 
 crusade. But when we return, or if we stay at home and do not perform 
 our pilgrimage, we will immediately do them full justice according to the 
 law of the Welsh and of the parts aforementioned. 
 
 LXVII. We will without delay dismiss the son of Llewelin and all 
 the Welsh hostages, and release them from the engagements they entered 
 into with us for the preservation of the peace. 
 
 LXVIII. We shall treat with Alexander, king of the Scots, concerning 
 the restoring of his sisters and hostages and rights and liberties, in the 
 same form and manner as we shall do to the rest of our barons of 
 England; unless by the engagements which his father, William, late king 
 of Scots, hath entered into with us, it ought to be otherwise; and this 
 shall be left to the determination of his peers in our court. 
 
 LXIX. All the aforesaid customs and liberties which we have granted 
 to be holden in our kingdom, as much as it belongs to us towards our 
 people, all our subjects, as well clergy as laity, shall observe, as far as 
 they are concerned towards their dependents, 
 
 LXX. And whereas for the honor of God and the amendment of our 
 kingdom and for quieting the discord that has arisen between us and 
 our barons, we have granted all the things aforesaid ; willing to render 
 them firm and lasting, we do give and grant our subjects the following^ 
 security ; namely, that the barons may choose five and twenty barons of 
 the kingdom, whom they think convenient, who shall take care with all 
 their might to hold and observe and cause to be observed the peace and 
 liberties we have granted them, and by this our present charter con- 
 firmed. So as that if we, our justiciary, our bailififs or any of our officers,, 
 shall, in any case, fail in the performance of them towards any person, 
 or shall break through any of these articles of peace and security, and 
 the offense is notified to four barons chosen out of the five and twenty 
 aforementioned, the said four barons shall repair to us, or our justiciary, 
 if we are out of the realm, and laying open the grievance shall petition 
 to have it redressed without delay; and if it is not redressed by us, or, 
 if we should chance to be out of the realm, if it is not redressed by our 
 justiciary, within forty days, reckoning from the time it has been 
 notified to us, or to our justiciary if we should be out of the realm, 
 the four barons aforesaid shall lay the case before the rest of the five 
 and twenty barons, and the said five and twenty barons, together with 
 the community of the whole kingdom, shall distrain and distress us 
 all the ways possible ; namely, by seizing our castles, lands, possessions, 
 and in any other manner they can, till the grievance is redressed ac- 
 cording to their pleasure; saving harmless our own person and the 
 persons of our queen and children. And when it is redressed they shall 
 obey us as before. 
 
 LXXI. And any person whatsoever in the kingdom may swear that 
 he will obey the orders of the five and twenty barons aforesaid in the 
 execution of the premises and that he will distress us jointly with them 
 
ii86 APPENDIX 
 
 to the utmost of his power; and we give public and free liberty to 
 any one that will swear to them and never shall hinder any person from 
 taking the same oath. 
 
 LXXII. As for those, our subjects, who will not of their own accord 
 swear to join the live and twenty barons in distraining and distressing us, 
 we will issue our order to make them take the same oath as aforesaid. 
 
 LXXIII. And if any one of the five and twenty barons dies or goes 
 out of the kingdom or is hindered any other way from putting the things 
 aforesaid in execution, the rest of the said five and twenty barons may 
 choose another in his room in their discretion, who shall be sworn in 
 like manner as the rest. 
 
 LXXIV. In all things that are committed to the charge of these five 
 and twenty barons, if when they are all assembled together they 
 shall happen to disagree about any matter, or some of them summoned 
 will not or cannot come, whatever is agreed upon or enjoined by the 
 major part of those who are present shall be reputed as firm and valid 
 as if all the five and twenty had given their consent, and the aforesaid 
 five and twenty shall swear that all the premises they shall faithfully 
 observe, and cause with all their power to be observed. 
 
 LXXV. And we will not by ourselves or others, procure anything 
 whereby any of these concessions and liberties be revoked or lessened, 
 and if any such thing be obtained, let it be null and void; neither shall 
 we ever make use of it either by ourselves or any other. 
 
 LXXVI. And all the ill will, anger, and malice that hath arisen be- 
 tween us and our subjects, of the clergy and laity, from the first breaking 
 out of the dissensions between us, we do fully remit and forgive. More- 
 over all trespasses occasioned by the said dissension from Easter in 
 the sixteenth year of our reign, till the restoration of peace and tran- 
 quillity, we hereby entirely remit to all, clergy as well as laity, and so 
 far as in us lies do fully forgive. 
 
 LXXVII. We have moreover granted them our letters patent, testi- 
 monial of Stephen lord archbishop of Canterbury, Henry lord archbishop 
 of Dublin, and the bishops aforesaid, as also of master Pandulph for 
 the security of the concessions aforesaid. 
 
 LXXVIII. Wherefore, we will, and firmly enjoin, that the church of 
 England be free, and that all men in our kingdom have and hold all the 
 aforesaid liberties, rights and concessions, truly and peacefully, freely 
 and quietly, fully and wholly, to themselves and their heirs, in all things 
 and places forever, as is aforesaid. 
 
 LXXIX. It is also sworn, as well on our part as on the part of the 
 barons, that all the things aforesaid shall faithfully and sincerely be 
 observed. 
 
 Given under our hand, in the presence of the witnesses above named, 
 and many others, in the meadow called Running Mead between Windel- 
 fore and Stanes, the fifteenth day of June, the seventeenth year of our 
 reign. 
 
CONSTITUTION OF THE UNITED STATES OF AMERICA 
 
 PREAMBLE 
 
 We the people of the United States in order to form a more perfect 
 union, establish justice, insure domestic tranquillity, provide for the 
 common defense, promote the general welfare, and secure the blessings 
 of liberty to ourselves and our posterity, do ordain and establish this 
 Constitution for the United States of America. 
 
 ARTICLE I 
 
 Section i. All legislative powers herein granted shall be vested in a 
 congress of the United States, which shall consist of a senate and house 
 of representatives. 
 
 Sec. 2. The house of representatives shall be composed of members 
 chosen every year by the people of the several states, and the electors in 
 each state shall have the qualifications requisite for electors of the most 
 numerous branch of the state legislature. 
 
 No person shall be a representative who shall not have attained to 
 the age of twenty-five years, and been seven years a citizen of the United 
 States, and who shall not when elected be an inhabitant of that state in 
 which he shall be chosen. 
 
 Representatives and direct taxes shall be apportioned among the several 
 states which may be included within this Union according to their re- 
 spective numbers, which shall be determined by adding to the whole 
 number of free persons, including those bound to service for a term of 
 years, and excluding Indians not taxed, three-fifths of air other persons. 
 The actual enumeration shall be made within three years after the first 
 meeting of the congress of the United States, and within every subsequent 
 term of ten years, in such manner as they shall by law direct. The 
 number of representatives shall not exceed one for every thirty thousand, 
 but each state shall have at least one representative ; and until such 
 enumeration shall be made, the state of New Hampshire shall be entitled 
 to choose three, Massachusetts eight, iRhode Island and Providence Plan- 
 tations one, Connecticut five, New York six, New Jersey four, Penn- 
 sylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina 
 five, South Carolina five, and Georgia three. 
 
 When vacancies happen in the representation from any state, the 
 executive authority thereof shall issue writs of election to fill such 
 vacancies. 
 
 The house of representatives shall choose their speaker and other 
 officers, and shall have the sole power of impeachment. 
 
 Sec. 3. The senate of the United States shall be composed of two 
 
 1 187 
 
ii88 APPENDIX 
 
 senators from each state, elected by the people thereof, for six years; and 
 each senator shall have one vote. The electors in each state shall have 
 the qualifications requisite for electors of the most numerous branch of 
 the state legislatures/ 
 
 Immediately after they shall be assembled in consequence of the first 
 election, they shall be divided as equally as may be into three classes. 
 The seats of the senators of the first class shall be vacated at the ex- 
 piration of the second year, of the second class at the expiration of the 
 fourth year, and of the third class at the expiration of the sixth year, so 
 that one-third may be chosen every second year; . . . When vacancies 
 happen in the representation of any state in the senate, the executive 
 authority of such state shall issue writs of election to fill such vacancies : 
 provided, that the legislature of any state may empower the executive 
 thereof to make temporary appointments until the people fill the vacancies 
 by election as the legislature may direct. 
 
 This amendment shall not be so construed as to affect the election 
 or term of any senator chosen before it becomes valid as a part of the 
 constitution.^ 
 
 No person shall be a senator who shall not have attained to the age 
 of thirty years, and been nine years a citizen of the United States, and 
 who shall not when elected be an inhabitant of that state for which he 
 shall be chosen. 
 
 The vice-president of the United States shall be president of the 
 senate, but shall have no vote unless they be equally divided. 
 
 The senate shall choose their other officers, and also a president pro 
 tempore in the absence of the vice-president, or when he shall exercise 
 the office of president of the United States. 
 
 The senate shall have the sole power to try all impeachments. When 
 sitting for that purpose they shall be on oath or affirmation. When the 
 president of the United States is tried, the chief justice shall preside: and 
 no person shall be convicted without the concurrence of two-thirds of 
 the members present. 
 
 Judgment in cases of impeachment shall not extend further than to 
 removal from office and disqualification to hold and enjoy any office of 
 honor, trust or profit under the United States; but the party convicted 
 shall nevertheless be liable and subject to indictment, trial, judgment, and 
 punishment, according to law. 
 
 Sec. 4. The times, places, and manner of holding elections for Senators 
 and Representatives shall be prescribed in each state by the Legislature 
 thereof; but the Congress may at any time by law make or alter such 
 regulations, except as to the places of choosing Senators. The Congress 
 shall assemble at least once in every year, and such meeting shall be on 
 the first Monday in December, unless they shall by law appoint a different 
 day. 
 
 ^ As amended in 1913. 
 
COXSTITUTIOX OF THE UXITED STATES 1189 
 
 Sec. 5. Each house shall be the judge of the elections, returns and 
 qualifications of its own members, and a majority of each shall constitute 
 a quorum to do business; but a smaller number may adjourn from day 
 to day, and may be authorized to compel the attendance of absence mem- 
 bers, in such manner and under such penalties as each house may provide. 
 
 Each house may determine the rules of its proceedings, punish its 
 members for disorderly behavior, and, with the concurrence of two-thirds, 
 expel a member. 
 
 Each house shall keep a journal of its proceedings, and from time to 
 time publish the same, excepting such parts as -may in their judgment 
 require secrecy; and the yeas and nays of the members of either house 
 on any question shall, at the desire of one-fifth of those present, be entered 
 on the journal. 
 
 Neither house, during the sessions of Congress, shall, without the 
 consent of the other, adjourn for more than three days, nor to any other 
 place than that in which the two houses shall be sitting. 
 
 Sec. 6. The Senators and Representatives shall receive a compensation 
 for their services, to be ascertained by law, and paid out of the Treasury 
 of the United States. They shall in all cases, except treason, felony, and 
 breach of the peace, be privileged from arrest during their attendance at 
 the session of their respective houses, and in going to and returning from 
 the same ; and for any speech or debate in either house, they shall not be 
 questioned in any other place. 
 
 No Senator or Representative shall, during the time for which he was 
 elected, be appointed to any civil office under the authority of the United 
 States, which shall have been created or the emoluments whereof shall 
 have been increased during such time ; and no person holding any office 
 under the United States shall be a member of either house during his 
 continuance in office. 
 
 Sec. 7. All bills for raising revenue shall originate in the House of 
 Representatives, but the Senate may propose or concur with amendments 
 as on other bills. 
 
 Every bill which shall have passed the House of Representatives and 
 the Senate shall, before it become a law, be presented to the President of 
 the United States. If he approve he shall sign it, but if not, he shall 
 return it, with his objections, to that house in which it shall have 
 originated, who shall enter the objections at large on their journal, and 
 proceed to reconsider it. If, after such reconsideration, two-thirds of 
 that house shall agree to pass the bill, it shall be sent, together with the 
 objections, to the other house, by which it shall likewise be reconsidered; 
 and if approved by two-thirds of that house, it shall become a law. But 
 in all such cases the votes of both houses shall be determined by yeas 
 and nays, and the names of the persons voting for and against the bill 
 shall be entered on the journal of each house respectively. If any bill shall 
 not be returned'by the President within ten days (Sundays excepted) after 
 it shall have been presented to him, the same shall be a law, in like 
 
J 190 APPEXDIX 
 
 manner as if he had signed it, unless the Congress, by their adjournment, 
 prevent its return, in which case it shall not be a law. 
 
 Every order, resolution, or vote, to which the concurrence of the 
 Senate and House of Representatives may be necessary (except on a ques- 
 tion of adjournment), shall be presented to the President of the United 
 States, and before the same shall take effect, shall be approved by him, 
 or, being disapproved by him, shall be repassed by two-thirds of the 
 Senate and House of Representatives, according to the rules and limita- 
 tions prescribed in the case of a bill. 
 
 Sec. 8. The Congress . shall have power — 
 
 To lay and collect taxes, duties, imposts, and excises; to pay the debts 
 and provide for the common defense and general welfare of the United 
 States ; but all duties, imposts, and excises shall be uniform throughout 
 the United States; 
 
 To borrow money on the credit of the United States ; 
 
 To regulate commerce with foreign nations, and among the several 
 States, and with the Indian tribes ; 
 
 To establish an uniform rule of naturalization, and uniform laws on 
 the subject of bankruptcies, throughout the United States; 
 
 To coin money, regulate the value thereof, and of foreign coin, and fix 
 the standard of weights and measures; 
 
 To provide for the punishment of counterfeiting the securities and 
 current coin of the United States ; 
 
 To establish post offices and post roads ; 
 
 To promote the progress of science and useful arts, by securing for 
 limited times to authors and inventors the exclusive right to their re- 
 spective writings and discoveries ; 
 
 To constitute tribunals inferior to the supreme court; 
 
 To define and punish piracies and felonies committed on the high 
 seas, and offenses against the law of nations; 
 
 To declare war, grant letters of marque and reprisal, and make rules 
 concerning captures on land and water; 
 
 To raise and support armies, but no appropriation of money to that 
 use shall be for a longer term than two years ; 
 
 To provide and maintain a navy; 
 
 To make rules for the government and regulation of the land and 
 naval forces ; 
 
 To provide for calling forth the militia to execute the laws of the 
 union, suppress insurrections and repel invasions ; 
 
 To provide for organizing, arming, and disciplining, the militia, and for 
 governing such part of them as may be employed in the service of the 
 United States, reserving to the states respectively, the appointment of 
 the officers, and the authority of training the militia according to the 
 discipline prescribed by congress; 
 
 To exercise exclusive legislation in all cases whatsoever, over such 
 district (not exceeding ten miles square) as may, by cession of particula** 
 
COXSTITUTIOX OF THE UNITED STATES 1191 
 
 states, and the acceptance of congress, become the seat of the government 
 of the United States, and to exercise like authority over all places pur- 
 chased by the consent of the legislature of the state in which the same 
 shall be, for the erection of forts, magazines, arsenals, dockyards, and 
 other needful buildings ; and 
 
 To make all laws which shall be necessary and proper for carrying into 
 execution the foregoing powers, and all other powers Vested by this 
 constitution in the government of the United States, or in any department 
 or officer thereof." 
 
 Sec. 9. "The migration or importation of such persons as any of the 
 states now existing shall think proper to admit, shall not be prohibited 
 by the congress prior to the year one thousand eight hundred and eight, 
 but a tax or duty may be imposed on such importation, not exceeding 
 ten dollars for each person. 
 
 The privilege of the writ of habeas corpus shall not be suspended, 
 unless when in cases of rebellion or invasion the public safety may 
 require it. 
 
 No bill of attainder or ex post facto law shall be passed. 
 
 No capitation or other direct tax shall be laid, unless in proportion to 
 the census or enumeration hereinbefore directed to be taken. 
 
 No tax or duty shall be laid on articles exported from any state. No 
 preference shall be given by any regulation of commerce or revenue to 
 the ports of one state over those of another; nor shall vessels bound to, 
 or from, one state, be obliged to enter, clear, or pay duties in another. 
 
 No money shall be drawn from the treasury, but in consequence of 
 appropriations made by law; and a regular statement and account of the 
 receipts and expenditures of all public money shall be published from time 
 to time. 
 
 No title of nobility shall be granted by the United States : and no per- 
 son holding any office of profit or trust under them, shall, without the 
 consent of the congress, accept of any present, emolument, office, or 
 title, of any kind whatever, from any king, prince, or foreign state. 
 
 Sec. 10. No state shall enter into any treaty, alliance, or confederation; 
 grant letters of marque and reprisal; coin money; emit bills of credit; 
 make anything but gold and silver coin a tender in payment of debts ; pass 
 any bill of attainder, ex post facto law, or law impairing the obligation of 
 contracts, or grant any title of nobility. 
 
 No state shall, without the consent of the congress, lay any imposts or 
 duties on imports or exports, except what may be absolutely necessary 
 for executing its inspection laws : and the net produce of all duties and 
 imports, laid by any state on imports or exports, shall be for the use of 
 the treasury of the United States ; and all such laws shall be subject to 
 the revision and control of the congress. 
 
 No state shall, without the consent of congress, lay any duty of 
 tonnage, keep troops, or ships of war in time of peace, enter into any 
 agreement or compact with another state, or with a foreign power, or 
 
1 1 92 APPENDIX 
 
 engage in war, unless actually invaded, or in such imminent danger as 
 will not admit of delay. 
 
 ARTICLE II 
 
 OF THE EXECUTIVE 
 
 Section i. The executive power shall be vested in a President of the 
 United States of America. He shall hold his office during the term of 
 four years, and, together with the Vice-President, chosen for the same 
 term, be elected, as follows : 
 
 Each State shall appoint, in such manner as the Legislature thereof 
 may direct, a number of electors equal to the whole number of Senators 
 and Representatives to which the State may be entitled in the Congress; 
 but no Senator or Representative, or person holding an office of trust or 
 profit under the United States, shall be appointed an elector. 
 
 [The electors shall meet in their respective states, and vote by ballot 
 for two persons, of whom one, at least, shall not be an inhabitant of the 
 same state with themselves. And they shall make a list of all the persons 
 voted for, and of the number of votes for each ; which list they shall sign 
 and certify, and transmit, sealed, to the seat of the government of the 
 United States, directed to the president of the senate. The president of 
 the senate shall, in the presence of the senate and house of representa- 
 tives, open all the certificates, and the vote shall then be counted. The 
 person having the greatest number of votes shall be the president, if such 
 number be a majority of the whole number of electors appointed; and 
 if there be more than one who have such majority and have an equal 
 number of votes, then the house of representatives shall immediately 
 choose by ballot one of them for president; and if no person have a 
 majority, then from the five highest on the list the said house shall in 
 like manner choose the president. But in choosing the president the 
 votes shall be taken by states, the representation from each state having 
 one vote; a quorum for this purpose shall consist of a member or mem- 
 bers from two-thirds of the states, and a majority of all the states shall 
 be necessary to a choice. In every case, after the choice of the president, 
 the person having the greatest number of votes of the electors shall be 
 the vice-president. But if there should remain two or more who have 
 equal votes, the senate shall choose from them by ballot the vice- 
 president.]* 
 
 The Congress may determine the time of choosing the electors, and 
 the day on which they shall give their votes, which day shall be the same 
 throughout the United States. 
 
 No person except a natural-born citizen, or a citizen of the United 
 States at the time of the adoption of this Constitution, shall be eligible 
 to the office of President; neither shall any person be eligible to that 
 office who shall not have attained to the age of thirty-five years, and 
 been fourteen years a resident within the United States. 
 
 *See Twelfth Amendment. 
 
COXSTITUTION OF THE UNITED STATES 1193 
 
 In case of the removal of the President from office, or of his death, 
 resignation, or inability to discharge the powers and duties of the said 
 office, the same shall devolve on the vice-president; and the congress may 
 by law provide for the case of removal, death, resignation or inability, 
 both of the president and vice-president, declaring what officer shall then 
 act as president, and such officer shall act accordingly, until the disability 
 be removed, or a president shall be elected. The president shall at stated 
 times receive for his services a compensation which shall neither be in- 
 creased nor diminished during the period for which he shall have been 
 elected, and he shall not receive within that period any other emolument 
 from the United States, or any of them. 
 
 Before he enter on the execution of his office he shall take the following 
 oath or affirmation : "I do solemnly swear (or affirm) that I will 
 faithfully execute the office of president of the United States, and will to 
 the best of my ability, preserve, protect and defend the constitution of 
 the United States." 
 
 Sec. 2. The president shall be commander-in-chief of the army and 
 navy of the United States, and of the militia of the several states, when 
 called into the actual service of the United States ; he may require the 
 opinion in writing of the principal officer in each of the executive depart- 
 ments upon any subject relating to the duties of their respective offices, and 
 he shall have power to grant reprieves and pardons for offenses Against 
 the United States, except in cases of impeachment. 
 
 He shall have power, by and with the advice and consent of the 
 senate, to make treaties, provided two-thirds of the senators present 
 concur ; and he shall nominate, and by and with the advice and consent 
 of the senate shall appoint ambassadors, other public ministers and 
 consuls, judges of the supreme court, and all other officers of the United 
 States whose appointments are not herein otherwise provided for, and 
 which shall be established by law : but the congress may by law vest 
 the appointment of such inferior officers as they think proper in the 
 president alone, in the courts of law, or in the heads of departments. 
 
 The president shall have power to fill up all vacancies that may happen 
 during the recess of the senate, by granting commissions which shall 
 expire at the end of their next session. 
 
 Sec. 3. He shall from time to time give to the congress information 
 of the state of the union, and recommend to their consideration such 
 measures as he shall judge necessary and expedient; he may on extra- 
 ordinary occasions, convene both houses, or either of them, and in case 
 of disagreement between them with respect to the time of adjournment, 
 he may adjourn them to such time as he shall think proper; he shall 
 receive embassadors and other public ministers ; he shall take care that 
 the laws he faithfully executed, and shall commission all the officers of the 
 United States. 
 
 Sec. 4. The president, vice-president and all civil officers of the United 
 States, shall be removed from office on impeachment for and conviction 
 of treason, bribery, or other high crimes and misdemeanors. 
 
1 194 APPENDIX 
 
 ARTICLE III 
 
 OF THE JUDICIARY 
 
 Section i. The judicial power of the United States shall be vested in one 
 supreme court, and in such inferior courts as the congress may from 
 time to time ordain and establish. The judges both of the supreme and 
 inferior courts shall hold their offices during good behavior, and shall 
 at stated times receive for their services a compensation which shall not be 
 diminished during their continuance in office. 
 
 Sec. 2, The judicial power shall extend to all cases in law and equity 
 arising under this constitution, the laws of the United States, and trea- 
 ties made, or which shall be made, under their authority; to all cases 
 affecting embassadors, other public ministers and consuls ; to all cases of 
 admiralty and maritime jurisdiction; to controversies to which the 
 United States shall be a party ; to controversies between two or more 
 states ; between a state and citizens of another state ; between citizens of 
 different states; between citizens of the same state claiming lands under 
 grants of different states, and between a state, or the citizens thereof, and 
 foreign states, citizens or subjects. 
 
 In all cases affecting embassadors, other public ministers and consuls, 
 and those in which a state shall be party, the supreme court shall have 
 original jurisdiction. In all the other cases before mentioned, the 
 supreme court shall have appellate jurisdiction, both as to law and fact, 
 with such exceptions and under such regulations as the congress shall 
 make. 
 
 The trial of all crimes, except in cases of impeachment, shall be by 
 jury; and such trial shall be held in the state where the said crimes shall 
 have been committed ; but when not committed within any state, the trial 
 shall be at such place or places as congress may by law have directed. 
 
 Sec. 3. Treason against the United States shall consist only in levying 
 war against them, or in adhering to their enemies, giving them aid and 
 comfort. No person shall be convicted of treason unless on the testimony 
 of two witnesses to the same overt act, or on confession in open court. 
 
 The congress shall have power to declare the punishment of treason, 
 but no attainder of treason shall work corruption of blood or forfeiture 
 except during the life of the person attainted. 
 
 ARTICLE IV 
 
 MISCELLANEpUS PROVISIONS 
 
 Section i. Full faith and credit shall be given in each state to the 
 public acts, records, and judicial proceedings of every other state. And 
 the congress may by general laws prescribe the manner in which such 
 acts, records and proceedings shall be proved, and the effect thereof. 
 
 Sec. 2. The citizens of each state shall be entitled to all privileges and 
 immunities of citizens in the several states. 
 
 A person charged in any state with treason, felony, or other crime, who 
 shall flee from justice, and be found in another state, shall on demand 
 
COXSTITUTIOX OF THE UNITED STATES 1195 
 
 of the executive authority of the state from which he fled "be delivered 
 up to be removed to the state having jurisdiction of the crime. 
 
 No person held to service or labor in one state, under the laws thereof, 
 escaping into another, shall in consequence of any law or regulation 
 therein, be discharged from such service or labor, but shall be delivered 
 up on claim of the party to whom such service or labor may be due. 
 
 Sec, 3. New states may be admitted by the congress into this union ; but 
 no new state shall be formed or erected within the jurisdiction of any 
 other state; nor any state may be formed by the junction of two or more 
 states, without the consent of the legislatures of the states concerned as 
 well as of the congress. 
 
 The congress shall have power to dispose of and make all needful 
 rules and regulations respecting the territory or other property belonging 
 to the United States ; and nothing in this constitution shall be so con- 
 strued as to prejudice any claims of the United States or of any par- 
 ticular state. 
 
 Sec. 4. The United States shall guarantee to every state in this union 
 a republican form of government, and shall protect each of them against 
 invasion; and on application of the legislature, or of the executive (when 
 the legislature cannot be convened) against domestic violence. 
 
 ARTICLE V 
 The Congress, whenever two-thirds of both Houses shall deem 
 it necessary, shall propose amendments to this Constitution, or, on the 
 application of the Legislatures of two-thirds of the several States, shall 
 call a convention for proposing amendments, which, in either case, shall 
 be valid to all intents and purposes, as part of this Constitution, when 
 ratified by the Legislatures of three-fourths of the several States, or by 
 conventions in three-fourths thereof, as the one or the other mode of rati- 
 fication may be proposed by the Congress; provided that no amendment 
 which may be made prior to the year one thousand eight hundred and 
 eight shall in any manner affect the first and fourth clauses in the ninth 
 section of the first article ; and that no State, without its consent, shall 
 be deprived of its equal suffrage in the Senate. 
 
 ARTICLE VI 
 
 All debts contracted and engagements entered into before the 
 adoption of this Constitution shall be as valid against the United States 
 under this Constitution as under the confederation. 
 
 This Constitution, and the laws of the United States which shall be 
 made in pursuance thereof, and all treaties made, or which shall be made, 
 under the authority of the United States, shall be the supreme law of the 
 land ; and the judges in every State shall be bound thereby, anything 
 in the constitution or laws of any State to the contrary notwithstanding. 
 
 The Senators and Representatives before mentioned, and the mem- 
 bers of the several State Legislatures, and all executive and judicial 
 officers, both of the United States and the several States, shall be bound 
 
1 196 
 
 APPENDIX 
 
 by oath or affirmation to support this Constitution; but no religious test 
 shall ever be required as a qualification to any office or public trust under 
 the United States. 
 
 ARTICLE VII 
 The ratification of the conventions of nine states shall be sufficient for 
 the establishment of this constitution between the states so ratifying the 
 same. 
 
 Done in convention, by the unanimous consent of the states present, 
 the seventeenth day of September in the year of our Lord one thousand 
 seven hundred and eighty-seven, and of the independence of the United 
 States of America the twelfth. In witness whereof we have hereunto 
 subscribed our names. 
 
 George Washington, 
 
 President, and Deputy from Virginia. 
 Delaware 
 
 New Hampshire 
 John Langdon, 
 Nicholas Gilham. 
 
 Massachusetts 
 Nathaniel Gorman, 
 RuFus King. 
 
 Cotmecticut 
 Wm. Sam'l Johnson, 
 Roger Sherman. 
 
 New York 
 Alexander Hamilton. 
 
 New Jersey 
 WiL. Livingston, 
 Wm. Patterson, 
 David Brearley, 
 JoNA. Dayton. 
 
 Pennsylvania 
 B. Franklin, 
 RoBT. Morris, 
 Thos. Fitzsimons, 
 James Wilson, 
 Thomas MiPFLik, 
 Geo. Clymer, 
 Jared Ingersoll, 
 Gouv. Morris. 
 
 Geo. Read, 
 John Dickinson, 
 Jaco. Broom, 
 Gunning Redford, Jr., 
 Richard Bassett. 
 
 Georgia 
 William Few, 
 Abr. Baldwin. 
 
 Maryland 
 James McHenry, 
 pANL. Carroll, 
 Dan. of St. Thos. Jenifer. 
 
 P^irginia 
 John Blair, 
 James Madison, Jr. 
 
 North Carolina 
 Wm. Blount, 
 Hu: Williamson, 
 Rich'd Dobbs Spaight. 
 
 South Carolina 
 J. Rutledge, 
 Charles Pinckney, 
 Chas. Cotesworth Pinckney, 
 Pierce Butler. 
 Attest: William Jackson, Secretary. 
 
COXSTITCTIOX OF THE UNITED STATES 1197 
 
 AMENDMENTS TO THE CONSTITUTION 
 
 Proposed by Congress and ratified by the Legislatures of the several 
 states pursuant to the fifth article of the original constitution. 
 
 Article I. "Congress shall make no law respecting an establishment of 
 religion, or prohibiting the free exercise thereof; or abridging the free- 
 dom of speech, or of the press; or the right of the people peaceably to 
 assemble, and to petition the government for a redress of grievances. 
 
 Article II. A well-regulated militia, being necessary to the security of a 
 free state, the right of the people to keep and bear arms shall not be 
 infringed. 
 
 Article III. No soldier shall, in time of peace, be quartered in any 
 house, without the consent of the owner, nor in time of war, but in a man- 
 ner to be prescribed by law. 
 
 Article IV. The right of the people to be secure in their persons, houses, 
 papers, and effects, against unreasonable searches and seizures, shall not 
 be violated, and no warrants shall issue, but upon probable cause, sup- 
 ported by oath or affirmation, and particularly describing the place to be 
 searched, and the persons or things to be seized. 
 
 Article V. No person shall be held to answer for a capital, or otherwise 
 infamous crime, unless on a presentment or indictment of a grand jury, 
 except in cases arising in the land or naval forces, or in the militia, when 
 in actual service in time of war or public danger; nor shall any person be 
 subject for the same offense to be twice put in jeopardy of life or limb; 
 nor shall be compelled in any criminal case to be a witness against him- 
 self, nor be deprived of life, liberty, or property, without due process of 
 law; nor shall private property be taken for public use without just 
 compensation. 
 
 Article VI. In all criminal prosecutions, the accused shall enjoy the 
 right to a speedy and public trial, by an impartial jury of the state and 
 district wherein the crime shall have been committed, which district shall 
 have been previously ascertained by law, and to" be informed of the nature 
 and cause of the accusation; to be confronted with the witnesses against 
 him ; to have compulsory process for obtaining witnesses in his favor ; and 
 to have the assistance of counsel for his defense. 
 
 Article VII. In suits at common law, where the value in controversy 
 shall exceed twenty dollars, the right of trial by jury shall be preserved; 
 and no fact tried by jury shall be otherwise re-examined in any court of 
 the United States, than according to the rules of the common law. 
 
 Article VIII. Excessive bail shall not be required, nor excessive fines 
 imposed, nor cruel and unusual punishments inflicted. 
 
 Article IX. The enumeration in the constitution, of certain rights, 
 shall not be construed to deny or disparge others retained by the people. 
 
 Article X. The powers not delegated to the United States by the con- 
 stitution, nor prohibited by it to the states, are reserved to the states re- 
 spectively, or to the people. 
 
1 198 APPENDIX 
 
 «* 
 
 Article XL The judicial power of the United States shall not be 
 construed to extend to any suit in law or equity, commenced or prose- 
 cuted against one of the United States by citizens of another state, or 
 by citizens or subjects of any foreign state. 
 
 Article XII, Sec. i. The electors shall meet in their respective states 
 and vote by ballot for president and vice-president, one of whom, at 
 least, shall not be an inhabitant of the same state with themselves ; they 
 shall name in their ballots the person voted for as president, and in 
 distinct ballots the person voted for as vice-president; and they shall 
 make distinct lists of all persons voted for as president, and of all per- 
 sons voted for as vice-president, and of the number of votes for each,, 
 which lists they shall sign and certify, and transmit, sealed, to the seat 
 of the government of the United States, directed to the president of the 
 senate. The president of the senate shall, in the presence of the senate 
 and house of representatives, open all the certificates, and the votes shall 
 then be counted. The person having the greatest number of votes for 
 president shall be the president, if such number be a majority of the 
 whole number of electors appointed ; and if no person have such majority, 
 then from the persons having the highest number not exceeding three on 
 the list of those voted for as President, the House of Representatives 
 shall choose immediately, by ballot, the President. But in choosing the 
 President, the votes shall be taken by States, the representaition from 
 each State having one vote ; a quorum for this purpose shall consist of a 
 member or members from two-thirds of the States, and a majority of all 
 the States shall be necessary to a choice. And if the House of Repre- 
 sentatives shall not choose a President whenever the right of choice shall 
 devolve upon them, before the fourth day of March next following, then 
 the Vice-President shall act as President, as in the case of the death or 
 other constitutional disability of the President. The person having the 
 greatest number of votes as vice-president shall be the vice-president,, 
 if such number be a majority of the whole number of electors appointed; 
 and if no person have a majority, then from the two highest numbers on 
 the list the Senate shall choose the vice-president; a quorum for the 
 purpose shall consist of two-thirds of the whole number of Senators, and 
 a majority of the whole number shall be necessary to a choice. But no 
 person constitutionally ineligible to the office of President shall be 
 eligible to that of vice-president of the United States. 
 
 Article XIII, Sec. i. Neither slavery nor involuntary servitude, 
 except as a punishment for crime, whereof the party shall have been 
 duly convicted, shall exist within the United States or any place subject 
 to their jurisdiction.* 
 
 Sec. 2. Congress shall have power to enforce this article by appro- 
 priate legislation. 
 
 Article XIV,* Sec. i. All persons born or naturalized in the 
 
 * Declared Adopted Feb. i8, 1865. 
 ' Declared Adopted July 28, 1868. 
 
CONSTITUTION OF THE UNITED STATES 1199 
 
 United States, and subject to the jurisdiction thereof, are citizens of the 
 United States and of the State wherein they reside. No State shall make 
 or enforce any law which shall abridge the privileges or immunities of 
 citizens of the United States; nor shall any State deprive any person of 
 life, liberty or property, without due process of law, nor deny to any 
 person within its jurisdiction the equal protection of the laws. 
 
 Sec. 2. Representatives shall be apportiond among the several 
 States according to their respective numbers, counting the whole number 
 of persons in each state, excluding Indians not taxed. But when the 
 right to vote at any election for the choice of electors for President and 
 Vice-President of the United States, representatives in Congress, the 
 executive and judicial officers of a State, or the members of the Legis- 
 lature thereof, is denied to any of the male inhabitants of such state, being 
 twenty-one years of age, and citizens of the United States, or in any way 
 abridged, except for participation in rebellion or other crime, the basis 
 of representation therein shall be reduced in the proportion which the 
 number of such male citizens shall bear to the whole number of male 
 citizens twenty-one years of age in such State. 
 
 Sec. 3. No person shall be a senator or representative in congress or 
 elector of president or vice-president, or hold any office, civil or military, 
 under the United States, or under any state, who, having previously taken 
 an oath as a member of congress, or as an officer of the United States, 
 or as a member of any state legislature, or as an executive or judicial 
 officer of any state, to support the constitution of the United States, shall 
 have engaged in insurrection or rebellion against the same, or given aid 
 or comfort to the enemies thereof. But congress may by a vote of two- 
 thirds of each house remove such disability. 
 
 Sec. 4. The validity of the public debt of the United States, authorized 
 by law, including debts incurred for payment of pensions and bounties for 
 services in suppressing insurrection or rebellion, shall not be questioned. 
 But neither the United States nor any state shall assume or pay any 
 debt or obligation incurred in aid of insurrection or rebellion against the 
 United States, or any claim for the loss or emancipation of any slave; 
 but all such debts, obligations and claims shall be held illegal and void. 
 
 Sec. 5. The congress shall have power to enforce by appropriate leg- 
 islation the provisions of this article. 
 
 Article XV, Sec. i. The right of citizens of the United States to 
 vote shall not be denied or abridged by the United States, or by any 
 state, on account of race, color, or previous condition of servitude. 
 
 Sec. 2. The congress shall have power to enforce this article by ap- 
 propriate legislation. 
 
 (Declared adopted March 30, 1870.) 
 
 Article XVI. The Congress shall have power to lay and collect taxes 
 on incomes, from whatever source derived, without apportionment among 
 the several states and without regard to any census or enumeration. 
 
 (iRatified Feb'y, 1913.) 
 
INDEX 
 
 Abd-al-Rahman I of Spain, 423. 
 
 Abd-al-Rahman III of Spain, 424. 
 
 Accessaries, under Chinese law, 1105. 
 
 Act of Mediation (Swiss Constitu- 
 tion), 546. 
 
 Ado-ption, Babylonian law of, 1000. 
 
 Adoption, French law of, 11 17. 
 
 Adoption, German law of, 1172. 
 
 Adoption, Roman law of, 308, 1067. 
 
 Adrogation, Roman custom of, 307, 
 1067. 
 
 Adultery, Babylonian law concern- 
 ing, 998. 
 
 Adultery, Hindoo law concerning, 
 
 1047. 
 Adultery, Roman law of, 1005. 
 Aediles, Roman officers, 315. 
 Aerarium, Roman city treasury, 333. 
 Aethelbert, Laws of, 664. 
 African despotisms, 91. 
 African tribes, 90, 
 Agents, Liabilities of, in Babylon, 
 
 997. 
 Agricola, Subjugation of England 
 
 by, 653. 
 
 Ahmenhotep, king of Egypt, 127. 
 
 Ahmose, king of Egypt, 126. 
 
 Aids, incident to feudal tenure, 368, 
 
 677. 
 Aids, Provisions of Magna Charta 
 
 concerning, 1181. 
 Akbar, emperor of India, 181. 
 Alani, 352. 
 Alaric, 340, 35^. 
 
 Albigensians, Crusade against, 578. 
 Albiums of Roman praetors, 335. 
 Alboin, king of the Lombards, 353. 
 Alemanni, 562. 
 Alemanni, first appearance of, in 
 
 Gaul, 350. 
 Alexander of Macedon, 299. 
 Alexander of Macedon, Invasion of 
 
 India by. 178, 
 Alfonso VI of Castile, 427. 
 Alfred of England, 666. 
 Alimony, French law concerning, 
 
 1117. 
 Almoravids, Invasion of Spain by, 
 
 427. 
 
 Alms giving enjoined by the Koran, 
 
 159. 
 Amendments to the Constitution of 
 
 the United States, 830, 849, 1196, 
 
 1 198. 
 Amercements, provisions of Magna 
 
 Charta concerning, 1181, 
 America, first settlements in, 913. 
 American Indians, customs of, 82. 
 American revolution, 823. 
 American revolution, effects of, in 
 
 France, 601. 
 Amphyctionic league, principles of, 
 
 298. 
 Andaman islanders, 187. 
 Angles, settlement of, in England, 
 
 654. 
 Anne, Queen of England, 744, 
 Annuities, French law concerning, 
 
 1 138. 
 Annuities, German law concerning, 
 
 1 164. 
 Apodektae of Athens, 289. 
 Appeals at Rome in capital cases, 
 
 317. 
 Appeals at Rome from tribunes, 315. 
 Appenzell, 534, 537. 
 Aqueducts of Peru, 117. 
 Arabia, 155. 
 
 Aragon, Government of, 429, 427, 433. 
 Araucanians, 107. 
 Archons of Athens, 282, 290. 
 Areopagus, senate of Athens, 283, 
 
 290 294. 
 Argentine Republic, Constitution of, 
 
 921. 
 Argentine Republic, Revolution of, 
 
 1810, 916. 
 Aristides of Athens, 294. 
 Aristogiton of Athens, 287. 
 Armagnacs, invasion of Switzerland 
 
 by, 538. 
 Armenian village, ancient, 140. 
 Arminius, confederation formed by, 
 
 470. 
 Army of Germany, 504. 
 Army, paid legions at Rome, 325. 
 Army, no standing, in Switzerland, 
 
 549. 
 
 1 201 
 
1202 
 
 INDEX 
 
 Army of the United States, 889. 
 
 Arrondissements, French, 644. 
 
 Artel, 'Russian association of work- 
 ingmen, 403. 
 
 Articles of faith of Henry 8th of 
 England 707. 
 
 Artillery at battle of Crecy, 694. 
 
 Aryan invasion of India, 172. 
 
 Assembly of Notables called by Louis 
 XVI of France, 602. 
 
 Ashikaga of Japan, 256. 
 
 Aso'ka, rule of in India, 179. 
 
 Assignments for the benefit of credi- 
 tors in France, 1128. 
 
 Assignment of claims in Germany, 
 1151. 
 
 Assembly, National of Denmark, 
 466. 
 
 Assembly, National, of France, 605. 
 
 Assignats, issues of French, 626, 
 
 Astronomy, Egyptian knowledge of, 
 129. 
 
 Ataulphus, King of Visigoths 420. 
 
 Athens, ancient, 281. 
 
 Athelstan, King of England, ^'j. 
 
 Attila, 562. 
 
 Augsburg confession, 486. 
 
 Augustus Caesar, rule of, 332. 
 
 Australia, native tribes of, 81. 
 
 Australia, government of, TJ"]. 
 
 Austria, 470, 490, 498, 508. 
 
 Austria-Hungary, constitution of, 
 Sio. 
 
 Auto-da-fe of the Inquisition, 436. 
 
 Azincourtj battle of, 586, 
 
 Aztec calendar, 105. 
 
 Aztecs, cannibalism of the, 102, 104. 
 
 Aztecs, courts of, loi. 
 
 Aztecs, government of, 100. 
 
 Aztecs, laws of, written and pub- 
 lished, 100. 
 
 Aztecs, priesthood of, 102. 
 
 Aztecs, religious rites of, 102. 
 
 Aztecs, slavery among, loi. 
 
 x\ztecs, taxes of, 102. 
 
 Babylon, arts and industries of, 139, 
 
 141. 
 Babylon, laws of Hammurabi of, 139, 
 
 994- 
 
 Babylon, laws of, mentioned by Her- 
 odotus, 139- 
 
 Babylon, written language of, 924. 
 
 Balances of power under Chinese 
 emperors, 222. 
 
 Ball, John, teachings of, 694. 
 
 Bamboo used in Chinese punish- 
 ments, 1084. 
 
 Bank of England, incorporation of, 
 740. 
 
 Banks, state, in the United States, 
 871. 
 
 Barons, feudal, privileges and func- 
 tions of in France, 379. 
 
 Barons, five and twenty to enforce 
 Magna Charta, 1185. 
 
 Basil, Monastic code o'f, 367. 
 
 Bastile, storming of the, 610. 
 
 Bayazid ist of Turkey, 268. 
 
 Begging by Hindoo students, 1013. 
 
 Belgium, independence of, estab- 
 lished, 516. 
 
 Belgium, constitution of, 519. 
 
 Benedict, monastic code of, 366. 
 
 Benefits, German law of unjustified, 
 1 158. 
 
 Bern, city government of, 533. 
 
 Bern, International Postal Union at, 
 558. 
 
 Bernadotte, King of Sweden, 465. 
 
 Betrothal, German law of, 1166. 
 
 Betting, German law concerning, 
 1 1 56. 
 
 Bills of rights in American Consti- 
 tutions, 826, 835. 
 
 Biron, trial of, 590. 
 
 Black Act, English penal statute, 758. 
 
 Black death in France, 583. 
 
 Boc-lands of Saxons, 661. 
 
 Boniface, Pope, claims of, to temp- 
 oral power in France, 580. 
 
 Boni Mores, in Roman Law, 307. 
 
 Book of Changes, Chinese classic, 
 204. 
 
 Boston massacre, 819. 
 
 Brahmia, Hindoo account of birth of, 
 1006. 
 
 Brahmans, caste in India, 1007. 
 
 Brahmans, duties of, 198, 1008. 
 
 Brahmans, rules of conduct of, and 
 means of gaining a living, 1018. 
 
 Brazil, constitution of, 915, 921, 
 
 Brazil, discovery of, 914. 
 
 Brazil, Portuguese monarchy in, 447, 
 915. 
 
 Bribery of members of parliament in 
 England, 731. 
 
 Bribery, punishment of in China, 
 1 1 10. 
 
 Britain as a Roman province, 653. 
 
 British dependencies, government of, 
 177. 
 
 British Empire, theories of govern- 
 ment in, 932. 
 
 Brun, Rudolph, 332. 
 
 Buddhism, doctrines of, 177. 
 
INDEX 
 
 1203 
 
 Buddhism, introduction of into 
 
 China, 210. 
 Buddhism, introduction of into 
 
 Japan, 253. 
 Buddhist great councils, 179. 
 Biirgermeister of Zurich, ^32. 
 Buenos Ayres, settlement of, 917. 
 Burgundians, 562, 586. 
 Burials, French law relating to, 11 15. 
 
 Caaba, made the holy house by Mo- 
 hammed, 167. 
 
 Cabinet, British, 774. 
 
 Cadis, Mohammedan judges, 169, 
 
 Caesar, accession of, to power, s^. 
 
 Caesar, campaign of in Gaul, 561. 
 
 Caesar, description of England by, 
 652. 
 
 Caliphs, administration of, 168. 
 
 Caliphs, first four, elected by com- 
 munity of Medina, 168. 
 
 Calmar, union formed at, 456. 
 
 Calvin, John, 542. 
 
 Canada, 750, 777, 816. 
 
 Canal, Grand of China, 218. 
 
 Canon law, 346, 677. 
 
 Canulean law, 317. 
 
 Capacity to contract in Germany, 
 1 148. 
 
 Capet, Hugh, election of, as king of 
 France, 572. 
 
 Capitularies of Charlemagne, 371, 
 569. 
 
 Capitularies of Charles the Bald, 570. 
 
 Carlovingians, division of inheritance 
 of power of, 568. 
 
 Carnot, 624. 
 
 Carolina, 797, 805. 
 
 Carriers, liabilities of, in Babylon, 
 997. 
 
 Carthage, destruction of, 326. 
 
 Caste, absence of, in China, 242. 
 
 Caste, Hindoo laws of, 1055. 
 
 Caste, origin of in India, 174. 
 
 Caste. Subdivisions of, 183, 1055. 
 
 Castile, 427, 433- 
 
 Castile, government of, 430. 
 
 Catalonia. Republic of, 441. 
 
 Celts in British isles, 652. 
 
 Censors, Roman, powers of, 317. 
 
 Census in ancient Peru, 112. 
 
 Ceorls, Saxon freemen, 652. 
 
 Central America. 922. 
 
 Cerdic & Cynric, leaders of West 
 Saxons, 657. 
 
 Chaldeans, 136. 
 
 Charlemagne, 357, 411, 567. 
 
 Charlemagne in Germany, 473. 
 
 Charlemagne in Spain, 425. 
 
 Charles I of England, 719, 725. 
 
 Charles II of England, 729. 
 
 Charles V, Emperor, 439, 485, 514. 
 
 Charles XII of Sweden, 460. 
 
 Charles X of France, 633. 
 
 Charles Martel, 357. 
 
 Charter of Bergen, 455. 
 
 Charter of Carolina, 797. 
 
 Charter of Christopher II of Den- 
 mark, 454. 
 
 Charter of Connecticut^ 796. 
 
 Charter of East India Company, 716. 
 
 Charter, Forest, 686. 
 
 Charter of French communes, 579. 
 
 Charter of Georgia, 805. 
 
 Charter of Henry I of England, 678. 
 
 Charter of Henry III of England, 
 686. 
 
 Charter of John of England, 684. 
 
 Charter of London, 684. 
 
 Charter of Maryland, 794. 
 
 Charter of Massachusetts, 792, 804. 
 
 Charter of Pennsylvania, 798. 
 
 Charter of Plymouth, for New Eng- 
 land, 790. 
 
 Charter of Rhode Island, 795, 825. 
 
 Charter of Schwyz, 525. 
 
 Charter of Trondheim, 455. 
 
 Charter of Virginia, 787. 
 
 Charter to Walter Raleigh, 786. 
 
 Charters of corporations in the 
 United States. 907. 
 
 Chau dynasty in China, 208. 
 
 Checks and balances of governmental 
 powers, 74. 
 
 Child labor, provisions of Swiss con- 
 stitution concerning, 550. 
 
 Children, French law of rights and 
 obligations of, 11 16. 
 
 Children, German law of legitimacy, 
 1 1 70. 
 
 Children, German law of parental 
 power over, 961. 
 
 Children. German law concerning 
 illegitimate, 1171. 
 
 Chile, constitution of, 921. 
 
 Chile, revolution in, 916. 
 
 Chile, slavery abolished in, 922. 
 
 China, 201. 
 
 China, provincial governments of, 
 
 2.34- 
 China, provincial officers of, 237. 
 
 Chinese Board of Rites, 227. 
 
 Chinese classics, 204, 207, 
 
 Chinese cabinet, 224. 
 
 Chinese censorate, 231. 
 
 Chinese council of state, 225. 
 
I204 
 
 INDEX 
 
 Chinese court of revision, 232. 
 Chinese edicts, publication of, 226. 
 Chinese Imperial Academy, 233. 
 Chinese laws, 243. 
 Chinese penal code, 240, 1081. 
 Chinese privileged classes exempt 
 
 from certain punishments, 1089. 
 Chinese wall, construction of, 209. 
 Chinese written language, 924. 
 Chinnook Indians, 94. 
 Christ, teachings of, 361. 
 Christliche Vereinigung, Swiss, 541. 
 Christian religion in Japan, 257. 
 Christopher II of Denmark, charters 
 
 of, 454. 
 Chun Tsieu, Chinese classic, 207. 
 Church of Rome, abuses of power 
 
 by, 483. 
 Church of Rome, acquisition of land 
 
 by, 414. 
 Church of Rome, democratic spirit 
 
 of, 272>' 
 
 Church of Rome, growth of, 362. 
 
 Church of England, 707. 
 
 Church of England, rights of guar- 
 anteed by Magna Charta, 1187. 
 
 Church of England in the United 
 States, 862. 
 
 Cinna, Roman general, 328. 
 
 Cities, democratic spirit of, 534. 
 
 Cities, free of Italy, 411. 
 
 Cities, government of in England, 
 760. 
 
 Cities, government of in the United 
 States, 842, 857. 
 
 Cities of Missouri frame their own 
 charters, 877. 
 
 Cities of Russia, 385, 388. 
 
 Cities of United States, growth of, 
 
 857. 
 
 Civil Status under French code, 1115. 
 
 Civilization of India compared with 
 Europe, 199. 
 
 Clans in China, 240, 
 
 Clarendon, constitution of, 680. 
 
 Cleisthenes, legislation of, 288, 
 
 Clergy forbidden to marry by Greg- 
 ory 3rd, 340. 
 
 Clergy claims of English, 681. 
 
 Clerks of Chinese courts punished 
 for wrong judgments, 11 12. 
 
 Clients, Roman, 302. 
 
 Clovis, king of the Franks, 354, 563. 
 
 Cnut of Denmark, 451. 
 
 Cnut in England, 669. 
 
 Code, Babylonian of Hammurabi, 
 139, 094. 
 
 Code, Burmese, 188. 
 
 Code, civil of France, 618, 629, 1114. 
 Code, Civil of Germany, 1146. 
 
 Code of Knighthood in France, 573.. 
 
 Code establishments of St. Louis„ 
 578. 
 
 Code of Manu, 1005. 
 
 Code, Napoleon, 629. 
 
 Codrus, king of Athens, 2^2. 
 
 Colombia, constitution of, 921. 
 
 Colombia, compulsory school systenu 
 of, 919. 
 
 Coloni, Roman, 343. 
 
 Comanche Indians, 87. 
 
 Comanche Indians, confederacy of,. 
 94. 
 
 Comanche Indians, use of fire signals 
 'by, 94. 
 
 Comanche Indians, Tribal organiza- 
 tion and customs of, 93. 
 
 Combination, genius of the Dutch- 
 for, 518. 
 
 Combinations, 34, 978. 
 
 Combinations, business, in England,. 
 780. 
 
 Combinations, lack of capacity of 
 Hindoos for, 199. 
 
 Comitium, proceedings in Roman,. 
 ^312, 319. 
 
 Comitium, not consulted after Ti- 
 berius, Z2(7- 
 
 Committee of Safety, French, 618. 
 
 Commons, English House of, 687, 
 690, 724, 759. 
 
 Commune of Paris, 615. 
 
 Community Property, French law 
 concerning^ 1131. 
 
 Community of ownership, German 
 law of, 1 169. 
 
 Competitive examinations for office 
 in China, 1091, 
 
 Comipton, invention of spinning mule 
 •by, 755.. 
 
 Compromises, French law of, 1140. 
 
 Concilium Plebis, proceedings in Ro- 
 man, 320. 
 
 Concordat of Worms, 479. 
 
 Conduct, rules of, enjoined on Brah- 
 mins, 1018. 
 
 Confarreatio, Roman marriage cere- 
 mony, 307. 
 
 Confederation, American, 827. 
 
 Confederation of New England colo- 
 nies, 810. 
 
 Confederation of the Rhine, 497. 
 
 Confederation, Swiss, 527, 540. 
 
 Confucius, 206. 
 
 Confucius, Principles of government 
 of, 207. 
 
INDEX 
 
 1205 
 
 Congress, first American, 818. 
 
 Congress, American, of 1774, 821. 
 
 Congress of the American Confeder- 
 ation, 828. 
 
 Congress Provisions of the U. S. 
 Constitution concerning, 1188, 1191. 
 
 Connecticut, Constitution of, 794, 
 
 839. 
 Conquests, Spanish, m America, 913. 
 Constantine, Roman emperor, 340. 
 Constantinople, taken by Muhamed 
 
 n, 346. 
 Constitution of Austria-Hungary, 
 
 509. 
 
 Constitution of Belgium, 519. 
 
 Constitution, British, 744, 774, y^. 
 
 Constitution of Clarendon, 680. 
 
 Constitution of Connecticut, 794, 839. 
 
 Constitution of Denmark, 466, 
 
 Constitution of France, of I799 — 
 6285 of 1814 — 63.1, of 1848 — 636, of 
 1852-638. 
 
 Constitution, German Empire, 500. 
 
 Constitution, Helvetic, 545. 
 
 Constitution, Holland, 517; 
 
 Constitution, Italy, 417. 
 
 Constitution, Japan, 262, 
 
 Constitution of Latin American 
 States, 921. 
 
 Constitution, Norway, 468. 
 
 Constitution, Spain, 445, 496. 
 
 Constitution, Sweden, 467. 
 
 Constitution, Switzerland, 548. 
 
 Constitution, United States, 830, 
 1188. 
 
 Constitutional charter of France, 632. 
 
 Constitutions, state adopted by 
 American states at time of revo- 
 lution, 824. 
 
 Consuls, French, 627. 
 
 Consuls, Roman, establishment of 
 office of, 312. 
 
 Contracts, German law of, 1148,1150. 
 
 Contracts, French law of, 1127. 
 
 Contracts, Roman law of, 1072. 
 
 Contracts, general view of the law 
 of, 971. 
 
 Convicts, sale of, to Virginia plan- 
 ters, 790. 
 
 Cordova, Republic and seat of learn- 
 ing, 423, 426. 
 
 Corea, invasion of, by Japan, 253. 
 
 Corn laws in England, 755. 
 
 Corn laws, England repeal of, 761. 
 
 Coronation oath of King and Queen 
 of England, 734. 
 
 Corporations in Germany, 1146. 
 
 Corporations created under Henry 
 
 8th of England, 709. 
 Cortes of Castile, 428. 
 Cortes of Aragon, 429. 
 Cortes of Spain, 447. 
 Cortes of Portugal, 448. 
 Counts of Holland, 513. 
 County governments in the United 
 
 States, 843, 854. 
 Courtiers, character of, according to 
 
 Montesquieu, 599. 
 Courts of Belgium, 523, 525. 
 Courts of Egypt, 131. 
 Courts of France, 645. 
 Courts of Germany, 505. 
 Courts of Great Britain, 672, 677, 
 
 691, 7(>3, 7^7- 
 Courts of Italy, 417. 
 Courts of Norway, 469. 
 Courts of Peru, no. 
 Courts of Star Chamber, 704, 722. 
 Courts, under Cromwell, 727. 
 Courts of United States, 895, 908. 
 Court procedure in England, 743, 767. 
 Covenant of Plymouth colonists, 702. 
 Cranmer, Archbishop of Cantenbury, 
 
 706. 
 Creation, Hindoo account of, 1006. 
 Crimes and punishments, general 
 
 view of, 16. 
 Crimes, national, 25. 
 Cromwell, Oliver, 725. 
 Crown lands and buildings, sale of 
 
 French, 611. 
 Crusade, 576. 
 Crusade against the Albigensians, 
 
 578. 
 Crusade, Richard of England, in, 682. 
 Cshatriyas, Hindoo caste, duties of, 
 
 1008. 
 Cuba, settlement of, 917. 
 Cultivation of land in China, law 
 
 concerning, 1096. 
 Curators, German, 1172. 
 Curators, Romian, 1067. 
 Curiae, Roman organization by, 304. 
 Customs as law in India, 1008. ^ 
 Customs precede law, 80. - 
 "^Cylon of Athens, 283. 
 
 Daimios, power of, In Japan, 258. 
 Damathat, Burmese code, 188. 
 Danegeld imposed by Cnut, 670. 
 Danes, advent of, in England, 665. 
 Dark ages in Europe, 575. 
 Day, Chinese divisions of, 1090. 
 Death penalty abolished in Brazil 
 and Venezuela, 922. 
 
I206 
 
 INDEX 
 
 Death penalty in Babylon, under 
 
 code of Hammurabi, 994. 
 Death, presumption of, from absence 
 
 under German code, 1139. 
 Debt, public, of England, 744, 754. 
 Debts, p^ayment of, enforced with 
 
 ibamiboo in China, 1082. 
 Debts, payment of, enforced in early 
 
 Rome, 1003. 
 Decemvirate at Rome, 316. 
 Declaration of independence of 
 
 American states, ^2^. 
 Declaration of rights of man by 
 
 French Assembly, 608. 
 Declaration of rights in American 
 
 constitutions, 826, 835. 
 Delaware, organization of, 803. 
 Demes of Athens, 288. 
 Democracies in Swiss states, 535. 
 Democracies, political power in, 930. 
 Denmark, 450. 
 Denmark, change of, to absolute 
 
 monarchy, 459. 
 Departments of government in 
 
 China, 224. 
 Departments of government in 
 
 Japan, 261. 
 Deposit, French law of, 1128, 1137. 
 Deposit, German law of, 1154. 
 Deposit, Hindoo law of, 1043. 
 Descent and distribution of property 
 
 in the United States, 893. 
 Despotisms, simple, 91. 
 Dharma Sastras, Hindoo law, 175, 
 
 1005. 
 Diet, national, of Denmark, 459, 466. 
 Diet, German, 497. 
 Diet of Japan, 262. 
 Diet of Poland, 494. 
 Diet, national, of Sweden, 460, 467. 
 Diet, early Swiss, .S39, 54^. 
 Digger Indians without government 
 
 or laws, 80. 
 Dikasts, Athenian tribunals, 294. 
 Diocletian, Roman emperor, 339, 351. 
 Diocletian changes in Roman gov- 
 ernment made by, 339. 
 Direct legislation, 939. 
 Directory, French, 622. 
 Divorce laws of Aztecs, 104. 
 Divorce laws of Babylon, 998. 
 Divorce laws of China, iioo. 
 Divorce laws of France, 11 17. 
 Divorce laws of Germany, 1170. 
 Divorce laws, Hebrews, 145. 
 Divorce laws, Mohammed, 162. 
 Divorce laws, Twelve Tables of 
 
 Rome, IOCS. 
 
 Divorce laws, United States, 892. 
 
 Divorce, diversity in laws concerning, 
 15, 960. 
 
 Doge of Venice, powers of, 372. 
 
 Domesday book of William the 
 Conqueror, 675. 
 
 Domicil, French law of, 11 15. 
 
 Domestic relations, promiscuous in- 
 tercourse among lowest savages, 81. 
 
 Domestic relations, generalizations, 
 959- 
 
 Domestic relations of Saxon invad- 
 ers of Britain, 658. 
 
 Donations, French law concerning, 
 1 125. 
 
 Dorian settlement in Greece, 276. 
 
 Dotal property, French law concern- 
 ing, 1 133. 
 
 Dowery in Babylon, 1000. 
 
 Dozsa, Hungarian leader, 507. 
 
 Draco, code of, 282. 
 
 Dravidian inhabitants of India, 173, 
 187. 
 
 Druids, authority and customs of, 
 560, 653. 
 
 Drujina of early Russian rulers, 385. 
 
 Duelists in Missouri, 848. 
 
 Duma, Russian legislature, 393. 
 
 Dutch East India Company, 515. 
 
 Dutch in Japan, 257. 
 
 Dvorniastvo, Russian Nobility, 396. 
 
 Dwellings, act concerning artisan's 
 and laborer's in England, 772. 
 
 Dykes, laws of Babylon relating to, 
 996. 
 
 Dykes of Holland, 518. 
 
 Ealdormen, Saxon leaders, 655, 660. 
 
 East India Company, English chart- 
 ered, 716. 
 
 East India Company, English new, 
 718, 741. 
 
 East India Company, English, wind- 
 ing up of, 762. 
 
 East India Company, importations 
 of tea into colonies by, 820. 
 
 Eating swines flesh and diseased 
 meat prohibited by Koran, 165. 
 
 Eating, Hindoo rules concerning, 
 1023. 
 
 Ecuador, constitution of, 921. 
 
 Edict of Louis XV of France, 599. 
 
 Edict of Nantes, promulgation of, 
 591. 
 
 Edict of Nantes, revocation of 595. 
 
 Educational influences of first Cru- 
 sade, 577. 
 
 Edward I of England, 689. 
 
 Edward II of England, 692. 
 
INDEX 
 
 1207 
 
 Edward III of England, 583, 586, 692. 
 
 Edward IV of England, 699. 
 
 Egbert, extension of power of, 665. 
 
 Egypt, astronomy in ancient, 120. 
 
 Egypt, care of the dead in, 122. 
 
 Egypt, classical age XII dynasty, 126. 
 
 Egypt, classes of people in, i^. 
 
 Egypt, early kings of, 122. 
 
 Egypt, government unmilitary, 122, 
 
 Egypt, Hyksos or shepherd kings of, 
 126. 
 
 Egypt, judges of, 123, 131. 
 
 Egypt, land titles in, 127. 
 
 Egypt, medical knowledge in, 129. 
 
 Egypt, Polygamy among the rich, 
 128. 
 
 Egypt, provinces of old empire, 122, 
 
 Egypt, Pyramids of Gizeh, 123. 
 
 Egypt, schools of, 129. 
 
 Egypt, scribes of, 128. 
 
 Egypt, trial of robbers of tombs, 129. 
 
 Egypt, written language of, 924. 
 
 Electoral college of old German Em- 
 pire, yjd, 480. 
 
 Elizabeth of England, 711. 
 
 Emigrants, return of French, 629. 
 
 Empress Dowager of China, 224, 
 
 Empson and Dudley, extortions of, 
 704. 
 
 England, Inhabitants of, as described 
 by Caesar, 652. 
 
 England, introduction of Christian 
 religion in, 655. 
 
 Entailment of estates, 690, 
 
 Eorls, Saxon chiefs, 660. 
 
 Ephetae, judges of Athens, 283. 
 
 Ephors of Sparta, 277, 293. 
 
 Equador, constitution of, 921. 
 
 Escheats incident to feudal tenure, 
 
 369. 
 Eskimos, 80. 
 Ethelbert, laws of, 664. 
 Evidence, rules of, 62. 
 Evidence, rules of in French code, 
 
 1 136. 
 Evidence, rules of in code of Manu, 
 
 1038. 
 Evkof, Turkish department of, 271. 
 Examinations, Chinese literary, 234. 
 Examinations, Chinese, of officials, 
 
 1092. 
 Exchequer, English, first required to 
 
 render account, y^^. 
 Excommunication, consequences of, 
 
 380. 
 Executive functions, 70. 
 Executive power under constitution 
 
 of the United States, 850. 
 
 Executions in time of Henry VIII of 
 
 England, 706. 
 Exemption laws of the United 
 
 States, 894. 
 Expediency, limitations on imposed 
 
 by morality, 26. 
 
 False accusations, punishment for in 
 Babylon, 998. 
 
 Family council, French law concern- 
 ing the, 1 1 18. 
 
 Family council, German law concern- 
 ing the, 1 1 72. 
 
 Family, early Roman, 302. 
 
 Family, demoralization of, in Cae- 
 sars' time, 329. 
 
 Family, Irish joint, 657, 
 
 Family, public regulation of the, 12. 
 
 Family relations, laws governing, 
 
 959. 
 
 Fas in Roman law, 306. 
 
 Fashions among savages, 80. 
 
 Father, power of Roman, 302, 338, 
 1004. 
 
 Fealty, oath of, required by King 
 
 . Edmund, 669. 
 
 Female suffrage in Norway, 470. 
 
 Ferdinand and Isabella of Spain, 
 433-438. 
 
 Feudalism, rise of, 370, 571. 
 
 Feudalism, tenures of land, under, 
 368. 
 
 Feudalism, decay of, 379, 588, 757. 
 
 Feudalism in China, 205. 
 
 Feudalism in England, d'^z, ^7(>. 
 
 Feudalism in Germany, 473, 493. 
 
 Feudalism in Italy, 411. 
 
 Feudalism, in Japan, 257. 
 
 Feudalism in Spain, 428. 
 
 Feudalism, in theories of, 369. 
 
 Fief, advantages of converting allo- 
 dial lands into, 370, 571, 
 
 Fief, how conferred, 368. 
 
 Fines, incident to feudal tenure, 369. 
 
 Fines imposed at Rome, 314. 
 
 Fine, Irish joint family, 657. 
 
 Fiscus, treasury of Roman empire, 
 
 Flanders and Flemish towns in thir- 
 teenth century, 579. 
 
 Flight of Louis XVI of France, 613. 
 
 Florida, acquisition of, from Spain, 
 832. 
 
 Folk-lands of Saxons, 661. 
 
 Food, Hindoo laws relating to, 1023. 
 
 Forms of government, changes in, 
 939. 
 
 France, 559. 
 
I208 
 
 INDEX 
 
 France, early inhabitants of, 559. 
 
 France, present government of, 642. 
 
 Franks in France, 562. 
 
 Franks in Germany, 355, 472, 477. 
 
 Franks, invasion of Spain by, 420, 
 562. 
 
 Fraud, punishment of, in China, iioi. 
 
 Frauds and perjuries, passage of first 
 statute of, 729. 
 
 Fredegonde and Brunechild, story of, 
 563. 
 
 Frederick of Prussia, 488. 
 
 Free cities of Italy, ZT^-, 41 1- 
 
 Freedom of contract, 972. 
 
 French and Indian war, 814. 
 
 French revolution, 606. 
 
 French revolution, effects of in Eng- 
 land, 752. 
 
 Fujiwara family in Japan, 253. 
 
 Functions of government, changes in, 
 31, 52, 939. 
 
 Futai, Chinese governor, 234. 
 
 Gaming contracts, French law con- 
 cerning, 1 138. 
 
 Gaming contracts, German law con- 
 cerning, 1 156. 
 
 Gauls, ancient, 559. 
 
 Gautama, life and teachings of, 177. 
 
 Gautama, spread of religious doc- 
 trines of, in China, 210. 
 
 Gavelkind, custom of Saxons, 656. 
 
 Gens in ancient Rome, 302. 
 
 Gentes in Athens, 288. 
 
 George I of England, 746. 
 
 George II of England, 748, 
 
 George III of England, 750. 
 
 Georgia, charter for, to John Perci- 
 val, 805. 
 
 German emperors, election of, 476, 
 480. 
 
 German tribes, conquests by, 471, 
 
 477. 
 
 Germans, ancient, ^"j. 
 
 Germans, purity of domestic life of, 
 478. 
 
 Germany, social organization of an- 
 cient, 470. 
 
 Germany, Roman power in, 470. 
 
 Gesiths, Saxon, 660. 
 
 Genghis Kahn, conquests of, 213. 
 
 Genseric, King of Vandals, 352. 
 
 Gentoo code, 190. 
 
 Ghebelins, faction of, 375, 4i5- 
 
 Gifts, law of, in Germany, 1152. 
 
 Girondists, execution of, 618. 
 
 Glencoe, massacre at, 739. 
 
 Gnaeus Gemicus, 315. 
 
 Godfrey de Bouillon, 576. 
 Golden Bull of Hungary, 506. 
 Golden Bull promulgated by Charles 
 
 IV, 480. 
 Golden Horde in Russia, 387. 
 Goldene Handveste, charter called, 
 
 533. 
 Golden League in Switzerland, 542. 
 Gorm the old of Denmark, 451. 
 Goths, 350, 562. 
 Goths in Spain, 421. 
 Government, general purposes of, 'jd. 
 Granada, conquest of by Spaniards, 
 
 434. 
 Great privilege sanctioned by Mary, 
 
 Dutchess of Holland, 513. 
 Greece, 275. 
 
 Greece, Roman conquest of, 326. 
 Greek governments, 925. 
 Gregorian Code, 340. 
 Gregory III, Pope, z^Z, 479- 
 Guardianship, French law of, 11 17. 
 Guardianship, German law of, 1172, 
 Guelphs, faction of, 375, 415. 
 Guelphs and Ghebellines, strife of, 
 
 375, 415. 
 Guests, Hindoo laws relating to, 1017. 
 Guilds, Chinese, 241. 
 Gunpowder, effects of, on military 
 
 organization of France, 586. 
 Gunpowder, advent of, in Germany, 
 
 482. 
 Gustavus Adolphus, 459. 
 Gustavus Vasa of Sweden, 457. 
 
 Haidah Indians, 94. 
 Han dynasty in China, 210. 
 Hanseatic League, 456, 513, 481. 
 Hanseatic League, Dutch cities in, 
 
 513. 
 Hanseatic League, disruption of, 487. 
 Hanse towns, English trade with, 710. 
 Hapsburgs, accession of« to Spanish 
 
 throne, 439. 
 Hargreaves invention of spinning 
 
 jenny by, 755. 
 Harmodius and Aristogiton of 
 
 Athens, 287. 
 Heirs, designation of in China, 1093. 
 Heirs, German law of right to por- 
 tions notwithstanding will, 1177. 
 Heirs, German law of worthiness to 
 
 inherit, 1177. 
 Heirs, rights of under Magna 
 
 Charta, 1179. 
 Heliasts or Heliosa of Athens, 289. 
 Helots. Spartan serfs, '2']']. 
 Helvetian society, 544, 
 
INDEX 
 
 1209 
 
 Henry I of England, 678. 
 
 Henry H of England, 680. 
 
 Henry HI of England, 686. 
 
 Henry IV of England, 696. 
 
 Henry V of England, 697. 
 
 Henry VII of Englnd, 704. 
 
 Henry VIII of England, 705. 
 
 Henry IV of France, 591. 
 
 Hengest and Horsa, 654. 
 
 Heptarchy established in England, 
 663. 
 
 Heresey, executions for, in France, 
 589. 
 
 Hersey, execution of Wm. Santre 
 for, 646. 
 
 Hersey, executions for in Massachu- 
 setts, 812. 
 
 Hermit life enjoined on old men by 
 Code of Manu, 1026. 
 
 Hertogen, Saxon leaders, 655, 660. 
 
 Hipparchus of i^-thens, 287. 
 
 Historical data, scantiness of, 924. 
 
 Holland, 512. 
 
 Hollographic wills, French law con- 
 cerning, 1 126. 
 
 Holy office established in Spain, 434. 
 
 Holy Roman empire in Germany, 475. 
 
 Holy Roman emperor, election of, 
 476, 480. 
 
 Homage, how rendered, 368. 
 
 Homestead laws of the United 
 States, 885. 
 
 Homicide, compensation for among 
 the Franks, 569. 
 
 Hottentots, 90. 
 
 House of Commons of British Par- 
 liament, 687, 690, 759, 775- 
 
 House of representative* of the 
 United States, 1188. 
 
 Hundred Years war, 583. 
 
 Hundreds, organization of, in China, 
 1094. 
 
 Hungarian Parliament, 511, 
 
 Hungary, early government of, 506. 
 
 Huns, invasion of Europe by, 470. 
 
 Hunters, liabilities of in Germany, 
 1 1 50. 
 
 Husband and wife, laws of France 
 governing relations of, 11 16. 
 
 Husband and wife, laws of Germany 
 governing relations of, 1169. 
 
 Husband and wife, laws of the Uni- 
 ted States governing relations of, 
 901. 
 
 Husband and wife, code of Manu, 
 1048. 
 
 Hwangti, Chinese Emperor, 204, 208. 
 
 Hyksos, Shepherd kings of Egypt, 
 
 126. 
 Hypotheca, German law of, 1164. 
 
 laroslaf of Russia, 385. 
 
 Ibn Hanbal, Treatise of, on Moham- 
 medan law, 168. 
 
 Illinois, constitution of, 844. 
 
 Images, worship of, 42, 156. 
 
 Imam, 274, 
 
 Imperial Clan of China, 223. 
 
 Imperial Court of China, 223. 
 
 Imperial Council of Russia, 393. 
 
 Inca of Peru, 108. 
 
 Incarnations according to code of 
 Manu, 1061. 
 
 India, Early inhabitants of, 171. 
 
 India, act of 24 and 25 Vict., relating 
 to, 761. 
 
 India, British rule in, 782. 
 
 Indians of North America, 85, 809. 
 
 Indians of South America, 916. 
 
 Indulgences, sale of by Roman 
 Church, 483. 
 
 Injury iby unlawful act, German law 
 concerning, 11 58. 
 
 Inheritance, Babylonian laws of, 999. 
 
 Inheritance, Burmese laws of, 188. 
 
 In'heritance, Chinese laws of, 1093. 
 
 Inheritance, English laws of, 778. 
 
 Inheritance, French laws of, 1122. 
 
 Inheritance, German laws of, 11 72. 
 
 Inheritance of political power in 
 Germany, 480. 
 
 Inheritance, Hebrew laws of, 146. 
 
 Inheritance, Hindoo laws of, 969, 
 1050. 
 
 Inheritance of Irish lands, 778. 
 
 Inheritance, effects of laws of, in 
 Italian cities, 411, 967. 
 
 Inheritance, Mohammedan laws of, 
 160. 
 
 Inheritance, early Roman law of, 
 33S, 1072. 
 
 Inheritance, Salian Franks law of, 
 356. 
 
 Inheritance, United States law of, 
 903. 
 
 Inheritance, political effects of laws 
 of, 966. 
 
 Initiative and Referendum in Swit- 
 zerland, 553, 555. 
 
 Innkeepers, liabilities of, in France, 
 1 133. 
 
 Innkeepers, liabilities of, in Ger- 
 many, 1155. 
 
 Innocent I, Pope, 363. 
 
 Inquisition in America, 913. 
 
I2IO 
 
 INDEX 
 
 Inquisition in France, 590. 
 
 Inquisition in Portugal, 436. 
 
 Inquisition in Spain, 434. 
 
 Inns of China, 216. 
 
 Insolvent debtors, laws of XII tables 
 
 concerning, 1003. 
 Institutes of Justinian, 1066. 
 Insurance in the United States, 872. 
 Interdict, Effect of religious, 381. 
 Interdict in Roman law, 1079. 
 Interest allowed by Chinese Code, 
 
 1 100. 
 Interest allowed by German Code, 
 
 1 149. 
 Interest allowed by Code of Manu, 
 
 1041. 
 Interrex, Roman, 304. 
 International Postal Union, 558. 
 ' Inventions in England in reign of 
 
 Geo. Ill, 775. 
 Investiture of Hindoo child with 
 
 mark of his class, loio. 
 Investitures, War of the, 411, 479. 
 Ireland, union of, with Great Britain, 
 
 739, 754. 
 Irish Parliament, support given King 
 
 James by, 739. 
 Iroquois confederacy, 87. 
 Iroquois, leagues of colonists with, 
 
 811, 814. 
 Ispravniks, Russian officers, 396, 400. 
 Italy, 410. 
 
 Italy, Government of, 417. 
 Ivan III of Russia, 388. 
 Ivan IV of Russia, the terrible, 388. 
 lyeyasu, shogun of Japan, 257. 
 
 Jacob, Family of, in Egypt, 127. 
 Jacobin Club in France, 606, 613, 620. 
 Jamaica, setlement of, 917. 
 James I of England, 717. 
 James II of England, yz2. 
 Jamestown, settlement of, 788. 
 Janissaries, Turkish troops, 270. 
 Japan, constitution of, 262. 
 Japan, early history and theory of 
 
 government of, 250. 
 Japan, new classification of society 
 
 in, 261. 
 Japan, opening of, to foreign trade, 
 
 257. 
 Japan, Revolution in, 200. 
 Java, acquisition of, by the Dutch, 
 
 515. 
 Jeffreys, bloody assizes of, 72>3- 
 Jenghiz Kahn, conquest of China by, 
 
 215. 
 Jerusalem, taking of, 576. 
 
 Jews, murders of, under Edward I, 
 689. 
 
 Jews, persecution of, in Spain, 434. 
 
 Jimmu Tenno of Japan, 250. 
 
 Joan of Arc, 586, 698. 
 
 John, King of England, 683. 
 
 Joint family of Celts, 657. 
 
 Joseph, policy of, 127. 
 
 Judea, 143. 
 
 Judea, Kings of, 151. 
 
 Judges, Babylonian, Punishment of 
 for changing a judgment, 994. 
 
 Judges, Chinese, punishable for un- 
 just judgments, 11 12. 
 
 Judges, French, decisions required 
 of, 1 1 14. 
 
 Judges, English, given life tenure, 
 
 744. 
 Judges, Roman, ZZ^, 1003, 1076. 
 Judicial Committee of Privy Coun- 
 cil of Great Britain, 770. 
 Judicial Functions, 55. 
 Judicial officers in United States, 826, 
 
 837, 1 195. 
 Juris consults, Roman, 334. 
 Jury, trials by, in England, 667. 
 Jury, trials by, in Italy, 418. 
 Jury, trials by, in United States, 910. 
 Jus in Roman law, 307. 
 Jus Gentium of Roman law, 335. 
 Jus Naturale of Roman law, Z27. 
 Justice, definition of, in Institutes of 
 
 Justinian, 1066. 
 Justice, Administration of, under 
 
 Code of Manu, 103 1. 
 Justinian, Compilation of laws by, 
 
 341. 
 Justinian, Institutes of, 341. 
 Justizoi of Aragon, powers of, 429. 
 Justiza of Aragon, execution of the, 
 
 434. 
 Jutes, advent of, in England, 654. 
 
 Kaimakams, Turkish officers, 272. 
 Kambalu, Chinese city described by 
 
 Marco Polo, 214. 
 Kabbeljaus and Hoeks, factions in 
 
 Holland, 513. 
 Kang-hi, Chinese emperor, 219, 
 Kent, Saxon customs in, 654. 
 Khadijah, wife of Mohammed, 156. 
 King Philip's war in New England, 
 
 803, 807. 
 Kings, Hindoo, attributes, powers 
 
 and duties of, 1030. 
 Kings, Hindoo, must respect Brah- 
 
 mans, 1031. 
 Kings of Early Rome, 303. 
 
INDEX 
 
 I2II 
 
 King« of Early Rome, final expulsion 
 
 of, 311. 
 Knighthood, manner of conferring, 
 
 573. 
 Knighthood, obligations assumed by, 
 
 574. 
 
 Knights Templar, 580. 
 
 Kolorian inhabitants of India, 173. 
 
 Koniaga Indians, customs of, 84. 
 
 Konstaffel of Zurich, 332. 
 
 Koraish, Arab clans, 156. 
 
 Koran, 156. 
 
 Koran, punishments under the, 159, 
 162. 
 
 Koran, swines flesh, eating of pro- 
 hibited by, 165. 
 
 Koran, usury condemned by, 165. 
 
 Kouan Kouen, Chinese robbers, 240. 
 
 Kublai, Mongol emperor of China, 
 213. 
 
 Kublai, invasion of Japan by, 256. 
 
 Labor organizations in the United 
 
 States, 875. 
 Laconia, settlement of, 275. 
 La Fayette, 612, 614, 632. 
 Land, American Indians had no 
 
 conception of title to, 962. 
 Land, sale of, in Babylon. 142. 
 Land, lease of, in Babylon, 996. 
 Land, Boc and Folk, in England. 661. 
 Land, acquisitions of, by Church of 
 
 Rome, 414. 
 Land, Egyptian laws, 127. 
 Land, titles to, in England, 972, 978. 
 Land, holdings of, in England in 
 
 time of Harold, 672. 
 Land, holdings of the Church in 
 
 Germany, 493. 
 Land laws of Germany, 496, 1160. 
 Land, village system in Germany, 
 
 492. 
 Land, laws of ancient Gauls and 
 
 Salian Franks, 563. 
 Land, Irish titles to, 742. 
 Land, Hebrew Jubilee, 146. 
 Land in Peru, no. 
 Land, early Roman tenure of, 308, 
 
 314. 
 Land, Roman use of public, 314. 
 Land, Russian tenure of, 403. 
 Land, Saxon tenure of. 655, 887. 
 Land laws, 962. 
 
 Land, early tenure of in Scandi- 
 navia, 449. 
 Land. Spanish grants of, in America, 
 
 919. 
 Land laws of Sparta, 280. 
 
 Land, laws of the United States, 36, 
 885. 
 
 Land, conveyance of title to, in 
 United States, 964, 
 
 Land, average holdings of, in prin- 
 cipal countries, 779. 
 
 Landgemeinde, Swiss popular As- 
 sembly, 535. 
 
 Latin-American States, 921. 
 
 Latin languages, use of, in English 
 courts abolished, 750. 
 
 Latin cities, Roman power over, 322. 
 
 Laud, William, archbishop of Canter- 
 bury, 720. 
 
 Laupen, battle of, 534. 
 
 Law, 'financial scheme of, 598. 
 
 Law, common, of England, 785, 898. 
 
 Laws, Ancient Assyrian promulgated 
 in the name of Asshur, 141. 
 
 Laws, Babylonian, 139, 994. 
 
 Laws of Draco, 282. 
 
 Laws of Egypt, 132. 
 
 Laws of France, 1114. 
 
 Laws of Germany, 1146. 
 
 Laws of India, 1005. 
 
 Laws of Jews, 144, 148. 
 
 Laws of Lycurgus, 280. 
 
 Laws of Norway, 468. 
 
 Laws of Russia, 407. 
 
 Laws of Salic law of inheritance, 
 356, 565. 
 
 Laws of Scandinavia in time of 
 Cnut, 451. 
 
 Laws of Solon, 284. 
 
 Laws of Twelve Tables of Rome, 
 316, 1002. 
 
 Laws, state, in the United States, 
 884. 
 
 Laws of the United States, 64. 
 
 Laws, methods of originating, 950. 
 
 Laws, modes of enacting at Rome, 
 312, 319, ^Z7. 
 
 Laws, purposes of, 950. 
 
 Lawyers in Burmah, 194. 
 
 League of colonies proposed by 
 Penn., 814. 
 
 Leases, French law of, 1135. 
 
 Leases, German law of, 1153. 
 
 Leet, Saxon serfs, 659. 
 
 Legislatures, constitutional restric- 
 tions of powers of American, 857. 
 
 Legislative expedients, 43, 
 
 Legislative expedients at Rome, 325. 
 
 Leo, Pope, 358, 363. 
 
 Leon, 428. 
 
 Leonidas, Spartan general, 291. 
 
 Leuctra, battle of, 298. 
 
 Letters, Chinese invention of, 924. 
 
1212 
 
 INDEX 
 
 Lexington, Battle of, 821. 
 
 Lex Talionis, in Babylon and Judea, 
 
 148, 954, lOOI. 
 Lex Talionis, in Mohammedan law, 
 
 162. 
 Lex Talionis among early Saxons, 
 
 659. 
 
 Liberty of person guaranteed by 
 
 Magna Qiarta, 1183. 
 Li-Ki, Book of Rites, Chinese classic, 
 
 207. 
 Li Yuen, Chinese emperor, 210. 
 Llamas, property of the state in 
 
 Peru, 116. 
 Loans, French law of, 1137. 
 Lodgment by debtor of money or 
 
 property in Germany, 1150. 
 Lombards in Italy, 353. 
 Lords, British House of, 717. 775- 
 Lost property, German law of, 1162. 
 Lothair, Excommunication of, 380. 
 Louis XIV of France, 543, 594. 
 Louis XIV of France, administra- 
 tive functions under, 595. 
 Louis XV of France, 599. 
 Louis XVI of France, 601, 613. 
 Louis XVI of France, condemnation 
 
 and execution of, 615. 
 Louis XVIII of France, 631. 
 Louis Napoleon, 637. 
 Louis, Philippe, 634. 
 Louisiana purchase, 832. 
 Lower Californians, 80. 
 Luther, Martin, reforms demanded 
 
 by, 483. 
 Lycurgus, laws of, 280, 
 
 McMahon, president of France, 642. 
 Magna Charta of King John, 684, 
 
 1 1 78. 
 Magyars, inroads of, into France, 
 
 570. 
 Magyars, inroads of, in Germany, 
 
 475. 
 
 Maintenence of relatives, German 
 law concerning, 1171. 
 
 Maine, grant of, to Duke of York, 
 798. 
 
 Majority, age of, in France, 11 19. 
 
 Majority, age of, in Germany, 1146. 
 
 Mama Oello Huaco, Peruvian tradi- 
 tion of, 107. 
 
 Manco Capac, Peruvian tradition of, 
 107. 
 
 Manchu conquest of China, 219. 
 
 Mancipation in Roman law, 310, 1069. 
 
 Mandate, German law of, 1154. 
 
 Mandate, Roman law of, 1074. 
 
 Manners and deportment, rules gov- 
 erning Hindoo, 1017. 
 
 Manu, Code of, 783, 1005. 
 
 Marat, 615, 617. 
 
 Marathon, battle of, 291. 
 
 Marcial, Uprisings led by, 584. 
 
 Marcomanni, Irruption of, 350. 
 
 Marco Polo, visit of, to China, 213. 
 
 Marie Antoinette, execution of, 615. 
 
 Maria Theresa of Austria, 490. 
 
 Marius, Roman consul, 327. 
 
 Marlbridge, statute of, 688. 
 
 Marriage contracts, French law of, 
 1131. 
 
 Marriage and divorce at Athens, 286. 
 
 Marriage and divorce in Babylon, 
 997. 
 
 Marriage and divorce, Chinese laws 
 concerning, 1097. 
 
 Marriage and divorce, French laws 
 concerning, 11 15. 
 
 Marriage and divorce, German laws 
 concerning, 1167. 
 
 Marriage and divorce, Hindoo laws 
 concerning, 1015, 1050. 
 
 Marriage and divorce, Roman XII 
 Tables, 1005. 
 
 Marriage and divorce, Roman, in 
 time of Justinian, 1067. 
 
 Marriage and divorce at Sparta, 280. 
 
 Marriage and divorce laws of the 
 United States, 892. 
 
 Marriage, feudal incidents of, 369. 
 
 Married women, separate property 
 of, under Hindoo law, 1053. 
 
 Master and servant, laws of France 
 relating to, 1136. 
 
 Master and servant, laws of Ger- 
 many relating to, 11 53. 
 
 Master and servant, laws of Moham- 
 med relating to, 162. 
 
 Master and servant, laws of early 
 Rome relating to, 1003. 
 
 Master and servant, laws of United 
 States relating to, 905. 
 
 Maryland, Charter of, 794, 
 
 Mary, Queen of England, 711. 
 
 Mary, Queen of Scots, 712. 
 
 Massachusetts, charter and settle- 
 ment of, 792, 804. 
 
 Massachusetts, Constitution of, 844. 
 
 Massachusetts, judgment of Kings 
 Bench annulling charter of 803. 
 
 Matrimonial Regime. German law 
 of, 1 168. 
 
 Mayors of the palace of Prankish 
 kings, 354, 5^6. 
 
 Mediaeval Europe, 349. 
 
INDEX 
 
 1213 
 
 Medicine, practice of in China, 1106. 
 
 Mencius, Chinese philosopher, Doc- 
 trines of, 221. 
 
 Menes, King of Egypt, 121. 
 
 Mercenaries, Swiss, 543. 
 
 Merovingian dynasty, 354, 5^3- 
 
 Merovingian dynasty in Germany, 
 472. 
 
 Merton, Statute of, 688. 
 
 Messengers, Chinese, Punishment of 
 for delay, 1091. 
 
 Mestisos of Mexico and South 
 America, 916. 
 
 Methods of acquiring political power, 
 926. 
 
 Mexican Calendar, 105. 
 
 Mexico, ancient inhabitants of, 99. 
 
 Mexico, ancient manufactures of, 
 105. 
 
 Mexico, ancient markets 01, 105. 
 
 Mexico, ancient money of, 105. 
 
 Mexico, constitution of, 921, 
 
 Mexico, revolt of, from Spain, 916. 
 
 Mexico, Modern, 910, 920. 
 
 Michael Romanof chosen Czar, 391. 
 
 Mikado of Japan, shorn of power, 
 
 254. 
 Mikado of Japan, restored to power, 
 
 260. 
 Milan in twelfth century, 375. 
 Militarism Modern, 937. 
 Military despotisms, establishment 
 
 of, 927. 
 Military governments in India, 198. 
 Military organization of China, 236. 
 Military organization of Germany, 
 
 503. 
 Military power at Rome, 310, 332. 
 Miltiades of Athens, 293. 
 Minamoto family in Japan, 254. 
 Mines in Peru, property of the Inca, 
 
 III. 
 Ming dynasty in China, 219. 
 Ministerial accountability, beginning 
 
 of, in England, 740. 
 Minors, emancipation of, under 
 
 French law, 1 1 19. 
 Minors, Guardianship under Roman 
 
 law, 1067. 
 Minors, German law concerning, 
 
 1171. 
 Mirs, Russian, 383, 390, 393. 
 Missouri, constitution of, 845. 
 Mohammed, 155. 
 
 Mohammedan invasion of India, 180. 
 Mojaves, Indians, 94. 
 Money, Chinese legal tender, under 
 
 Kublai, 218. 
 
 Money, not used in early Rome, 308. 
 Mongol conquest of Russia, z^y. 
 Moors in Spain, 428. 
 Monasteries, 364, z"/^- 
 Monasteries, English under Henry 
 
 eighth, 708. 
 Monopolies, control of, 879, 908, 973. 
 Monopolies, given by Queen Eliza- 
 beth, 715. 
 Monopolies, abolition of except for 
 
 inventions, 717. 
 Monopolies, punishment for in 
 
 China, iioi. 
 Morals, public regulation of private, 
 
 40. 
 Moral law, conceptions of, 40. 
 Moral rules of Hindoo code, 1018. 
 Moral debasement at Rome, 326, 329. 
 Morgarten, battle of, 53i- 
 Moriscos, expulsion of, from Spain, 
 
 440. 
 Moses, 144, 148, 928. 
 Mormons in the United States, 863. 
 Mortgages in China, 1095. 
 Mortgages in France, 1142. 
 Mortmain, statute of, 691. 
 Movables, German law concerning, 
 
 1 162. 
 Mourning, Chinese law of, 1085. 
 Mourning, punishment in China for 
 
 failure to observe, 1102. 
 Mudirs, Turkish officers, 272. 
 Mughal empire in India, 181. 
 Muhamed of Turkey, 270. 
 Municipal organization in England, 
 
 760. 
 Murad IV, 270. 
 
 Mutesserifs, Turkish officers, 272. 
 Mystic wills, French law concerning, 
 
 1 126. 
 
 Nafels, battle of, 535. 
 
 Names, Hindoo rules for, loio. 
 
 Napoleon Bonaparte, 619, 622, 630. 
 
 National Assembly of France, 605. 
 
 National Convention of France, 615. 
 
 Navajo Indians, 94. 
 
 Navarre, 425, 433. 
 
 Necker, French minister, 601. 
 
 Necromancy, execution of John 
 Stacy for, 702. 
 
 Negotiable instruments, German law 
 of, 1 157. 
 
 Nemophylakes, magistrates of Ath- 
 ^ens, 295. 
 
 New England colonies, social condi- 
 tions in, 808. 
 
I2I4 
 
 INDEX 
 
 New Hampshire, organization of, 
 
 798, 825. 
 New Jersey, government of, 805. 
 New York, Dutch settlement of, 807. 
 New York, Grant of to Duke of 
 
 York, 798. 
 New Zealand, native tribes of, 97. 
 New Zealand, government of, yj^. 
 Ngan-chah-sz, Chinese criminal 
 
 jud^e, 235. 
 Nicaea, Council of, 363. 
 Nobility abolished in Russia by 
 
 Peter, 392. 
 Nobility of Russia based on official 
 
 station, 403. 
 Nomes of Egypt, 121. 
 Nomothetae of Athens, 295. 
 Nootka Indians, 94. 
 Normans, Settlement of in France, 
 
 570. 
 North Carolina, Constitution of 1776, 
 
 834. 
 
 Northmen in England, 665. 
 
 Norway, constitution of, 486. 
 
 Norway, separation of, from Sweden, 
 469. 
 
 Norway, Wars in, 455. 
 
 Novation, French law of, 1129. 
 
 Novgorod, Republic of, 385, 388. 
 
 Noxal actions, Roman law concern- 
 ing, 1078. 
 
 Oaths, Judicial, French law^ concern- 
 ing, 1 1 30. 
 
 Oaths, Mohammedan punishment for 
 violation of, 165. 
 
 Oaths, rules of Code of. Manu con- 
 cerning, 1041. 
 
 Oblations enjoined by Code of 
 Manu, 1017. 
 
 Obligations, Roman law of, 1072. 
 
 Obligations, German law of, ii57- 
 
 Obsequies, Hindoo law concerning, 
 1017. 
 
 Octavius Caesar, 331. 
 
 Odin, worship of, by Scandinavians, 
 452. 
 
 Odoacar, king of Ostrogoths, 352. 
 
 Oekonomische Gesellschaft of Bern, 
 
 543. 
 Officers, pay of Roman, 326. 
 Offices, tenure of, in states of the 
 
 United States, 836. 
 Octal, conquests of, 213, 387. 
 Oleg of Russia, 384. 
 Oligarchies, conversion of Italian 
 
 free cities into, 412. 
 Oligarchies in Poland, 495. 
 
 Oligarchies, Swiss, 543. 
 Omayad dynasty in Spain, 424. 
 Ordeal, trial by, in Burmah, 195. 
 Ordeal, trial by, in England, 668, 
 Ordeal, trial by, in Scandinavia, 452. 
 Ornaments of naked savages, 86. 
 Orphans, good treatment of, required 
 
 'by the Koran, 159. 
 Osman, founder of Turkish empire, 
 
 267. 
 Ostracism at Athens, 290. 
 Ostrogoths, kingdom of, 352. 
 Oviedo, kingdom of, 425. 
 
 Pachomius, founder of monastery at 
 
 Tabennae, 365. 
 Pacific islands, inhabitants of, 96. 
 Pan-Hellenic Congress at Corinth, 
 
 Paradise, description of, in Koran, 
 157. 
 
 Paraphernalia, French law concern- 
 ing, 1 133. 
 
 Parent and Child, Laws of Twelve 
 Tables concerning, 1004. 
 
 Parent and child, laws of United 
 States, concerning, 901. 
 
 Parental authority, 8. 
 
 Paternal governments, 10. 
 
 Paris, Commune, 615. 
 
 Parliament, the British, 686, 706, 745. 
 
 Parliament, the Irish, 739. 
 
 Parliament, the Long, 722. 
 
 Parliament, the Rump, 729. 
 
 Parliament of Italy, 417. 
 
 Parliaments of France law courts, 
 
 599- 
 
 Partidas, Sieto, adoption of, as Span- 
 ish law, 429. 
 
 Partnership, French law of, 1136. 
 
 Partnership, German law of, 1155. 
 
 Partnership, Roman law of, 1074. 
 
 Patria Potestas, Roman law of, 1067. 
 
 Patriarchal Governments, 927. 
 
 Patricians, Roman, 303. 
 
 Pausanius, Spartan General, 293. 
 
 Payments, French law concerning, 
 1127. 
 
 Peasants war in Switzerland, 542. 
 
 Peculium, Roman law concerning, 
 1070. 
 
 Peking Gazette, 22(i. 
 
 Penal Code of China, 1081. 
 
 Penalties, contracts for, in Germany, 
 1 150. 
 
 Penance and expiation, Hindoo law 
 of, 1057. 
 
INDEX 
 
 1215 
 
 Penn., William, Charter granted to, 
 
 798. 
 Penn's 'Frame otf Government of 
 
 Pennsylvania, 800. 
 Pennsylvania, constitution of, 835, 
 
 849. 
 Pepin, 357, 2,^3, 2^7- 
 Pequot Indians, extermmation of, 
 
 806. 
 Pericles, 294. 
 Perioeci of Laconia, 277. 
 Perkin, pretender to British throne, 
 
 70A- 
 Persia, ancient laws of, 144. 
 Persia, recent changes in government 
 
 of, 153. 
 Peter, the hermit, 576. 
 Peter of Russia, 392. 
 Personal property, definition of, in 
 
 French law, 1120. 
 Personal status, laws relating to, 958. 
 Personal status, Roman law of, 1066. 
 Peru, Ancient, 46, 107, 970. 
 Peru, Ancient, Arts in, 118. 
 Peru, Ancient, Bridges, 117. 
 Peru, Ancient, courts of, no. 
 Peru, x^ncient. Educational system of 
 
 115. 
 Peru, Ancient, General policy of 
 
 government of, 108. 
 Peru, Ancient, Government of, a 
 
 business establishment, 118, 
 Peru, Ancient, Annual hunts in, 116. 
 Peru, Ancient, Judicial system of, 
 
 no. 
 Peru, Ancient, Land tenure and cul- 
 tivation in, no, 114. 
 Peru, Ancient, Marriage compulsory 
 
 in, US- 
 Peru, Ancient, Military organization 
 
 of, 114. 
 Peru, Ancient, Money not used in, 
 
 n8. 
 Peru, Ancient, Posts of, 116. 
 Peru, Ancient, Products of, 113. 
 Peru, Ancient, RtDads of, 113. 
 Peru, Ancient, Spanish conquest of, 
 
 913. 
 Peru, Ancient, Tambos, public sta- 
 tions for travelers in 113. 
 Peru, Modern, 916. 
 Pfaffen Brief, Swiss, 536. 
 Philip of Burgundy, rule of over 
 
 Holland, 514. 
 Philip le Bel of France, 580. 
 Philip III of Spain, 440. 
 Phoenicians in Spain, 419. 
 Pirates in West Indies, 918. 
 
 Pisistratus, tyrant of Athens, 287. 
 
 Phratries in Athens, 288. 
 
 Platea, battle of, 292. 
 
 Pleadings, rules of, in Gentoo Code, 
 192. 
 
 Plebs, in early Rome, 303, 305. 
 
 Plebs, manner of voting and powers 
 of, 315. 
 
 Plebs, growth of powers of, 315, 317. 
 
 Plebs, admission of, to Roman Sen- 
 ate, 313. 
 
 Pledges, French law of, 1140. 
 
 Pledges, German law of, 1149. 
 
 Pledges, Hindoo law of, 1042. 
 
 Plymouth charter for New England, 
 790. 
 
 Plymouth, covenant of settlers at, 
 792. 
 
 Podesta, officer of Italian republics, 
 376. 
 
 Poland, constitution and organiza- 
 tion of, 493. 
 
 Poland, partition of, 495, 508. 
 
 Polemarch of Athens, 282, 289, 290. 
 
 Police of Russia, 400. 
 
 Political parties, 936. 
 
 Political parties in England, 731, 742. 
 
 Political power, methods of acquir- 
 ing, 926. 
 
 Polyandry practiced by Celts of 
 British Isles, 657. 
 
 Polygamy, practiced by Americans, 
 892. 
 
 Polygamy, practiced by Aztecs, 104. 
 
 Polygamy, practiced by Celts of 
 British Isles, 657. 
 
 Polygamy, practiced by Chinese, 
 1007. 
 
 Polygamy practiced in Egypt, 128, 
 
 Polygamy, practiced in Russia, 383. 
 
 Polygamy, practiced in Spain under 
 the Omayads, 424. 
 
 Polygamy, practiced in Turkey, 269. 
 
 Polygamy allowed by the Koran, 160. 
 
 Polygamy, restricted in Peru to the 
 Inca and nobility, 114. 
 
 Polygamy, not allowed in Greece, 
 276. 
 
 Pontifex Maximus, Roman, 312. 
 
 Portugal, establishment of independ- 
 ence of, 431. 
 
 Portuguese in Brazil, 914. 
 
 Portuguese, discoveries of the, 432. 
 
 Portuguese, first visits of, to Japan, 
 257. 
 
 Portuguese, parliament, 431. 
 
 Portuguese, settlements in India, 182. 
 
 Posadnic of Novgorod, 385. 
 
I2l6 
 
 INDEX 
 
 Postal system of China, 216, 1103. 
 Postal system of England in 1653, 
 
 729. 
 Postal system of Ancient Persia, 14I. 
 Power of attorney, French law con- 
 cerning, 1 139. 
 • Praetor peregrinus, Roman judge, 335. 
 Praetors, Roman, issues in law suits 
 
 framed by, 338. 
 Prayers, regular required by Mo- 
 hammed, 159. 
 Prefects, Roman, 324. 
 Prescription under Burmese Code, 
 
 103, 104. 
 Prescription under French Code, 
 
 1144. 
 Prescrpition under Gentoo Code, 192. 
 Prescription under German Code, 
 
 1 148. 
 Prescription under Roman law, 1079. 
 President of the United States, elec- 
 tion of, 830, 1 193, 1199. 
 Priesthood in India, 1044. 
 Priesthood, Jewish, 148. 
 Priesthood, Early Roman, 304. 
 Privilege, abolition of, by National 
 
 Assembly of France, 607. 
 Privileged classes in China, 1088. 
 Privileged creditors, French law of, 
 
 1141. 
 Procedure, court, in China, 1108. 
 Procedure, court, in Egypt, 132. 
 Procedure, court, in England, 716. 
 Procedure, court under Code of 
 
 Manu, 1036. 
 Procedure, court, early Roman, in 
 
 civil cases, 1002, 1080. 
 Procedure court, early Roman, in 
 
 criminal cases, 309. 
 Procedure, court, in the United States, 
 
 908, 
 Procedure, essentials of, 59. 
 Property, Roman laws of, 1068. 
 Prussia, 488. 
 Prytanies, Athenian divisions of the 
 
 year, 289. 
 Psammetichus, King of Egypt, 128. 
 Pskof, Republic of, 386. 
 Public mess at Sparta, 278. 
 Public officers, principles applicable 
 
 to the selection of, 935. 
 Public regulation of families, 11. 
 Public regulation of private morals, 
 
 10. 
 Public Service corporations in United 
 
 States, 869. 
 Punic wars, 326. 
 Punishments in Babylon, 994, looi. 
 
 Punishments, Chinese, graduated 
 
 scale of and redemptions in money, 
 
 1082. 
 Punishments, Chinese infliction of, 
 
 1087. 
 Punishments, Chinese mitigation of, 
 
 1084, 1089. 
 Punishments under Cnut, 669. 
 Punishments, exemption of Brah- 
 
 mans from capital, 1047. 
 Punishments in England, under Eliz- 
 abeth, 715. 
 Punishments in England under 
 
 George I, 746. 
 Punishments in England under 
 
 George III and IV, 757. 
 Punishments in England under 
 
 Henry VIII, 707. 
 Punishments, Hebrew law of, lex 
 
 talionis, 148. 
 Punishments, Hindoo law of, 1045, 
 
 1053- 
 Punishments, of capital crimes in 
 
 Rome, 1005, 1080, 
 Punishments, Mohammedan, 159, 162. 
 Punishments, in Virginia under char- 
 ter, 789. 
 Punishments, theories of, 10, 951. 
 Purification, Hindoo rules for, 1060. 
 Puritans in England, 713. 
 Puritans in New England, 795, 803. 
 Puritans in British Parliament, 718. 
 Pyramids, construction of the great, 
 
 at Giza, 123. 
 Quaestors, Roman, duties of, 309. 
 Quasi-contracts, French law of, 1 130. 
 Quasi-contracts, Roman law of, 1074. 
 Quia Emptores, statute of, 691. 
 Quipu, records of Peru, kept by 
 
 means of, 113. 
 Railroads in Germany, 502. 
 Railroads, construction of in the 
 
 United States, 866. 
 Raleigh, Sir Walter, charter to, 714, 
 
 786. 
 Ramses II, king of Egyt, 128. 
 Ransom, payment of, in Babylon, 
 
 995. 
 Rape, punishment for, in China, 11 10. 
 Real estate, definition of, in French 
 
 Code, 1 120. 
 Referendum, provisions of Swiss 
 
 constitution concerning, 553. 
 Reformation in France, 587. 
 Reformation in Germany, 483. 
 Reformation in England, 707. 
 Reforms of Stein & Hardenburg in 
 
 Germany, 496. 
 
INDEX 
 
 1217 
 
 Regimes, contractual, in German law, 
 
 1 1 69. 
 Regimes, matrimonial, in German law, 
 
 1168. 
 Registers, Chinese, of persons and 
 
 families, 1092. 
 Reich'srath of Austria, 510. 
 Reichstag of Germany, 500. 
 Reign of terror in France, 618, 623. 
 Reliefs incident to feudal tenures, 
 
 368, 6-]-]. 
 Reliefs, provisions of Magna Charta, 
 
 concerning, 1179, 
 Religious orders in Spain, 427. 
 Religious wars in Switzerland, 541. 
 Representatives, principles governing 
 
 the selection of, 935. 
 Representative governments, 931, 
 Republics of Cordova and Seville in 
 
 Spain, 423, 426. 
 Republics of mediaeval Italy, 374. 
 Republic established in Portugal, 448. 
 Republic established in Spain, 445. 
 Revenue of Hindoo kings, 1035. 
 Revolution, French, 606, of 1830,634, 
 
 of 1848, 635. 
 ■Revolutionary war in the United 
 
 States, 821. 
 Rhenish ccm federation of cities, 480. 
 Rhode Island, settlement of, 795. 
 Ricared, King of Visigoths, 421. 
 Richard I of England, 682. 
 Richard II of England, 694. 
 Richard III of England, 702. 
 Richelieu, Cardinal, 593. 
 Rich Veda, 172. 
 Riparian owners, rights of, under 
 
 French law, 1121. 
 Roads, Chinese, under Mongol dy- 
 nasty, 216. 
 Robbery, city and governor liable 
 
 for in Babylon if robber escaped, 
 
 995. 
 Robespierre, 619, 623. 
 Rolf, Settlement of, in Normandy, 
 
 570. 
 Roman Empire, limits of, 349. 
 Rome, early history of, 301. 
 Rome, extension of power of, over 
 
 Latin cities, 2>'22. 
 Rome, pay of officer-s of, 326, 329. 
 'Rome, social demoralization of, 2i^, 
 
 329. 
 
 Roman kings, 305. 
 
 Roman law. development of, 334. 
 
 Rothari, king of Lombards, 353. 
 
 Rothari. laws of, 344, 
 
 Rurik, founder of Russian state, 384. 
 
 Russia, z^2. 
 
 Russia, Council of State of, 394. 
 
 Russia, Courts of, 397- 
 
 Russia, Holy Synod of, 395. 
 
 Russia, Ministers and bureaus of, 
 
 395. 
 
 Russia, Police system of, 400. 
 
 Russia, Senate, head of judicial sys- 
 tem, 395, 397- 
 
 Sacrifices, Human, by ancient Druids, 
 560. 
 
 Sacrifices, Human by ancient Mexi- 
 cans, 103. 
 
 St. Gallen, 537. 
 
 Saint Just, 623. 
 
 Saint Bartholomews eve, Massacre 
 of, 590. 
 
 St. Stephen of Hungary, 505. 
 
 Saladin, Recovery of Jerusalem by, 
 
 577.. 
 
 Salamis, Battle of, 292. 
 
 Sales, French law of, 1134. 
 
 Salian Franks, 354, 363. 
 
 Salian Franks, laws of, 356, 365. 
 
 Salt department of Chinese govern- 
 ment, 11Z7- 
 
 Sancho, King of Navarre, 425 
 
 Sangha, Buddhist society, 178, 
 
 Sanhitas, Vedic, 176. 
 
 Santa Hermandad, Confederation of, 
 
 Sapienza, Turkish victory ofiF, 268. 
 
 Saracens in Spain, 422. 
 
 Saxons, Advent of in England, 654. 
 
 Saxons, Monogamists, 657. 
 
 Scandinavia, 450. 
 
 Scholars, Instruction and conduct of 
 
 Hindoo, 1013. 
 Schools in the American colonies, 
 
 812. 
 Schools of Charlemagne, 570. 
 Schools in China, 210, 221. 
 Schools in Denmark, 466. 
 Schools in Egypt, 129. 
 Schools in France, 637. 
 Schools in Germany, 497, 505. 
 Schools in Great Britain, 77.1. 
 Schools in Hungary. 511. 
 Schools in Italy, 418. 
 Schools in Norway, 468. 
 Schools in Polytechnic and Normal 
 
 of France, 620. 
 Schools in Portugal, 448. 
 Schools in Russia, 397, 406. 
 Schools in Spain, 446. 
 Schools in Switzerland, 550. 
 Schools in Turkey, censorship over, 
 
 271. 
 
I2l8 
 
 INDEX 
 
 Schools in United States, 856, 891. 
 
 Schultheis of Bern, 534. 
 
 Schwitz, charter of, 527. 
 
 Scotland, crown of, given to Wil- 
 liam and Mary, 739. 
 
 Scotland, union of, with England, 
 745. 
 
 Scythians, ancient customs of, 382. 
 
 Scythians in India, 179. 
 
 Scythians in Scandinavia, 451. 
 
 Security, giving of, in Germany, 
 1 165. 
 
 Sempach, battle of. 535. 
 
 Sempacher Brief, 536. • 
 
 Senate, Athenian, 284. 
 
 Senate, Roman, composition and 
 functions of, 305, 313, 321, 333. 
 
 Senate, Roman, growth of power of, 
 305, 309, 313, 321. 
 
 Senate, Roman, changes in, made by 
 Caesar, 330. 
 
 Sequestration, French law of, 1138. 
 
 Serfs, attached to the soil by Boris 
 Gudenof, 391. 
 
 Serfs, in Hungary, 507. 
 
 Serfs, liberation of Russian, 393. 
 
 Serfs, in France, 580. 
 
 Servants of Hindoo kings, rules re- 
 lating to, 1034. 
 
 Servetus, Michael burning of, 542. 
 
 Service for debt in Babylon, 997. 
 
 Servitudes, French law of, 1122. 
 
 Servitudes, German law of, 1163.^ 
 
 Servius Tullius, Rornan institutions 
 under, 309, 
 
 Seven years war, 442, 749, . 814. 
 
 Seville, Republic of, 426. 
 
 Sha Jahan, Emperor of India, 182. 
 
 Shiek-ul-Islam of Turkey, 271, 
 
 Shi King, book of odes, Chinese clas- 
 sic, 207. 
 
 Shikken, Japanese officer, 255. 
 
 Ships, English, in 1582, 7116. 
 
 Shogun, Jaipanese office of, 255. 
 
 Shu King, Chinese book of history, 
 207. 
 
 Sieta Partidas, 429. 
 
 Simmel, pretender to English throne, 
 703. 
 
 Sieyes, Abbe, 626. 
 
 Slander, penalties for, in Babylon, 
 
 998. 
 
 Slavery of Aztecs of Mexico, loi. 
 
 Slavery in Babylon, 997, 1000. 
 
 Slavery in Brazil, 915. 
 
 Slavery abolition of, in British col- 
 onies, 759. 
 
 Slavery, abolition of, in Chile and 
 Argentina, 922. 
 
 Slavery, abolition of, in England, 
 672, 716. 
 
 Slavery in China, 242. 
 
 Slavery among the Franks, 565. 
 
 Slavery, abolition of, by France, 607. 
 
 Slavery in Gaul under the Romans, 
 561. 
 
 Slavery, among early Greeks, 283. 
 
 Slavery, Hebrew law of, 141. 
 
 Slavery, absence of, in India, 179. 
 
 Slavery, abolished in Portugal, 447. 
 
 Slavery in Rome, 316, 324, 342, 1066. 
 
 Slavery among the Saxons, 661. 
 
 Slavery abolished in Sweden, 456. 
 
 Slavery in West Indies, 914. 
 
 Slavery, superseded by feudalism, 
 370. 
 
 Slavery, abolition of, in United 
 States, 831, 905. 
 
 Slaves, burial of, with masters in 
 Japan, 252. 
 
 Slaves, liberated by Louis the Quar- 
 reler, 580. 
 
 Slaves, first importation of, into Vir- 
 ginia, 790. 
 
 Slavs of Russia, 383. 
 
 Social conditions at Rome at its 
 zenith of power, 324. 
 
 Social war, The, in Italy, 327. 
 
 Socialism in China, 211. 
 
 Solon, laws of, 284. 
 
 Somerset, execution of duke of, 710. 
 
 Sorcery, trial and punishment for, 
 in Babylon, 994. 
 
 South America, discovery of, by Co- 
 lumbus, 913. 
 
 South Sea Company, organization of, 
 747. 
 
 Spain, early inhabitants of, 419. 
 
 Spain, loss of population of, from 
 wars, 441. 
 
 Spain, Roman rule in, 419. 
 
 Spanish dominion in America, 913, 
 916. 
 
 Sparta, government of, 276. 
 
 Sparta, military organization of, 
 277, 281. 
 
 Sparta, senate of, 277. 
 
 Specialization in industry, 54. 
 
 Stamp Act, British, 817. 
 
 Star Chamber, court of, sanctioned 
 by Parliament, 704. 
 
 Star Chamber, court of, abolished, 
 722. 
 
 Starosta, Russian magistrate, 389, 
 402. 
 
INDEX 
 
 1219 
 
 Starschina, Russian officer, 402. 
 State constitutions in the United 
 
 States, 834. 
 States, limitations on powers of, by 
 
 U. S. constitution, 1192. 
 States General of France, summoned 
 
 by Philip le Bel, 582. 
 States General, of France, meetings 
 
 of, 584, 591, 603. 
 States General provincial, in France, 
 
 594. 
 States General, of Holland, 514. 
 State officers, election and appoint- 
 ment of, in United States, 836. 
 State statutes in the United States, 
 
 889. 
 Status, personal, in Roman empire, 
 
 342. 
 Status, personal, generalizations con- 
 cerning, 958. 
 Statutes of the United States, 887. 
 Statutes of Great Britain, 756. 
 Statute of frauds, 975. 
 Stephen, King of England, 679. 
 Storthing, Norwegian legislature, 
 
 468. 
 Strategi, Athenian general-s, 289. 
 Students, Brahman, instruction of, 
 
 1013. 
 Subrogation, French law of, 1128, 
 
 1140. 
 Sudras, duties of, 1006. 
 Suevi, 352. 
 
 Suffrage in United States, 840. 
 Suleyman of Turkey, 268, 270. 
 Sulla, with legions at Rome, 327. 
 Sunna, Mohammedan law, 168. 
 Sunnites, sect in Turkey, 273. 
 Supreme Court of Judicature in 
 
 England, ^(yj. 
 Sureties, French law relating to, 
 
 1 132. 
 Sureties, Hindoo law relating to, 
 
 1042. 
 Sureties, German law relating to, 
 
 1 1 57. 
 Sureties, provisions of Magna 
 
 Charta, concerning, 1180. 
 Suttee, Hindoo Practice, 183. 
 Suy dynasty in China, 210. 
 Swabian confederacy, 534. 
 Sweden, constitution of, 467. 
 Sweden, separation of Norway from, 
 
 469. 
 Swiss confederation, articles of, 529, 
 
 540. 
 Swabian league, 534. 
 Switzerland, 527. 
 
 Switzerland, constitution of, 548, 555. 
 Switzerland, invasion of, by French 
 
 under Napoleon, 544. 
 Switzerland, unique development of 
 
 governmental system, 556. 
 
 Taboo among Pacific Islanders, 96. 
 Ta-hio, Chinese classic, 221. 
 Taira family in Japan, 254. 
 Tai-tsung, Chinese emperor, 210. 
 Tang dynasty in China, 210. 
 Tanist, elected by Celts, 658. 
 Tarquin, expulsion of, from Rome, 
 
 311. 
 Tartar conquest of China, 219. 
 Taxation of American colonies by 
 
 England, 750, 816. 
 Taxation, British, 761. 
 Taxation in China, 242, 1096. 
 Taxation, English, under William 
 
 and Mary, 740. 
 Taxation in India, 186, 1035. 
 Taxation at Rome under Augustus, 
 
 Taxation, generalizations concerning, 
 955.. 
 
 Taxation, United States, constitu- 
 tional provisions concerning, 1191, 
 1200. 
 
 Tea, irnportations of, into American 
 colonies, 820. 
 
 Telegraphs, construction and opera- 
 tion of, 868. 
 
 Tenants, liabilities of, in Babylon, 
 996. 
 
 Tenji Tenno, Japanese emperor, 254. 
 
 Teusatski of Novgorod, 386. 
 
 Teutonic Knights, priestly order of, 
 481, 488. 
 
 Texas, annexation of to United 
 States, 832. 
 
 Theft, Roman law, 1075, 
 
 Tezcuco, courts in, loi. 
 
 Thegns, Saxon, 660. 
 
 Theocratic governments, 927. 
 
 Themistocles of Athens, 291, 293. 
 
 Theodoric, King of the Ostrogoths, 
 352. 
 
 Theodosian Code, 340. 
 
 Theseus, Athenian leader, 2^2. 
 
 Thesmothetae, Athenian, 295. 
 
 Thiers, M., 634, 642. 
 
 Thirty years war in Germany, 159, 
 487, 515, 542. 
 
 Thirty years war, participation of 
 Sipain in, 440. • 
 
 Thlinkeet Indians, customs of, 84, 
 
 Thomas-a-Becket, 681. 
 
1220 
 
 INDEX 
 
 Thor, worship of, 452. 
 Thothmes III, King of Egypt, 127. 
 Thralls, Saxon slaves, 659. 
 Tibeto-Burman inhabitants of India, 
 
 173. 
 Time, Chinese computation of, 1090. 
 Timur, Emperor of China, 218. 
 Timur, conquest of India by, 181. 
 Timur in Turkish empire, 268. 
 Tlascak, Government of, 99. 
 Toltecs of Mexico, human sacrifices 
 
 unknown among, 104. 
 Torture employed in trials by Druids, 
 
 560. 
 Torture, Chinese instruments of, and 
 
 use of, 1086. 
 Torture employed by the Inquisition, 
 
 436. 
 Torture, exemption of Chinese priv- 
 ileged classes from, mi. 
 Towns of France, 581. 
 Towns and Townships, organization 
 
 of in the United States, 855. 
 Transmigrations according to the 
 
 Code of Manu, 1061. 
 Treason in China, 1087, 1104. 
 Treason, executions for, under Eliza- 
 beth, 712. 
 Treason, punishment of, 951. 
 Treasury, control of Roman, 333. 
 Trespasses l>y cattle, Code of Manu, 
 
 1044. 
 Tribal organizations, 86. 
 Tribal organizations of Celts, 653. 
 Tribes, Free German, 470. 
 Tribes of India, 171. 
 Tribes, early Roman, 303, 316. 
 Tribes, unorganized, 80. 
 Tribunes, Roman, creation of office 
 
 of, 315. 
 Tribute imposed by Saracens in 
 
 Spain, 422. 
 Tribute of English, King John to the 
 
 Pope, 683. 
 Tripoli, war of United States with, 
 
 831. 
 Trusts, Roman law of, 1071. 
 Tsung-tuh, Chinese viceroy, 234. 
 Tuath, Irish village, 657. 
 Tupac, Inca, maxims of, 115. 
 Turgot, French minister, 601. 
 Turkey, 267. 
 
 Tutors, Roman law concerning, 1067. 
 Twelve Tables, adoption of laws of, 
 
 at Rome, 316. 
 Tyler, Wat, Rebellion under, 695. 
 
 Uganda, African despotism, 91. 
 
 Ulema, body of doctors of Moham- 
 medan law, 2'j'i. 
 
 Ulrich von Hutten, 485. 
 
 Unanimity required in Polish diet, 
 495. 
 
 Union of Denmark, Sweden and 
 Norway, 456. 
 
 Union of Sweden and Norway, 466. 
 
 Union of Scotland with England, 745. 
 
 United colonies of New England, 810. 
 
 Universites of Belgium, 525. 
 
 Universities of Great Britain, TJi. 
 
 Universities of Germany, foundation 
 of, 4S2. 
 
 Universities of France, foundation 
 of, 588. 
 
 Universities of Hungary, 511 
 
 Universities, United States, 813. 
 
 University of Copenhagen founded 
 in 1478, 457. 
 
 University of Cracow, 494. 
 
 University of Oxford and of Cam- 
 bridge, 716. 
 
 University of Harvard, 793. 
 
 Uri, charter of, from Henry VII, 
 527. 
 
 Usufructuary, rights of, under 
 French law, 1121. 
 
 Usufructuary, rights of, under 
 Roman Jaw, 1069. 
 
 Usury in England, 709. 
 
 Usury in Germany, 1149. 
 
 Usury, Hebrew law of, 147. 
 
 Usury, prohibited by the Koran, 165. 
 
 Usury under laws of XII Tables of 
 Rome, 1003, 
 
 Vaisyas, Hindoo caste, 174. 
 
 Vaisyas, Hindoo caste, duties of, 
 1008, 1055. 
 
 Valentinian, 340. 
 
 Valis, Turkish governors, 272. 
 
 Vandals, 252. 
 
 Variagi, 384. 
 
 Vassals, feudal, obligations of, 368. 
 
 Vaudians, massacre of, 590. 
 
 Vedas, rules concerning the reading 
 of, ion, 1020. 
 
 Vehmgericht in Germany. 481. 
 
 Venezuela, Capital punishment abol- 
 ished in, 922. 
 
 Venezuela, settlement of, 917. 
 
 Venice, government of, zi^- 
 
 Vetche of Novogorod, 385. 
 
 Veto of governor on state laws in 
 United States, 844. 
 
 Viatka, Republic of, 386. 
 
 Viceroys, Chinese, 234. 
 
INDEX 
 
 1 22 1 
 
 Victor Emanuel, King of Italy, 415, 
 
 417. 
 
 Vikings, appearance of in England, 
 359. 
 
 Villac Vmu, high priest of Peru, 108. 
 
 Villages, government of, in China, 
 240. 
 
 Village system in Germany, 491. 
 
 Village system in India, 185. 
 
 Villeinage under the feudal system, 
 370. 
 
 Virginia, Charter for, y^j. 
 
 Virgins of the Sun in Peru, 109. 
 
 Visigoths, 352, 562. 
 
 Visigoths in Spain, 357. 
 
 Vladimir of Russia, 384. 
 
 Vladimir II, of Denmark, 453. 
 
 Voievod, Russian court, 389. 
 
 Volost assemblies, 402. 
 
 Volost, group of Russian villages, 
 402. 
 
 Volost, courts, 398. 
 
 Voters in England, 698, 760. 
 
 Voters, qualifications of, in the Uni- 
 ted States, 840. 
 
 Wager of battle, trial by, 677. 
 Wang-ngan-Chi, Chinese socialist, 
 
 211. 
 War, conduct of, by Hindoo kings, 
 
 1033. 
 War of the Spanish succession, 813. 
 War of the Roses, 698. 
 War between England and the Uni- 
 ted States, of 1812, 831. 
 War, Civil in the United States, 1861 
 
 to 1865, 833. 
 War, between the United States and 
 
 Mexico, 832. 
 Wardships, feudal incidents of, 369. 
 Wardshi»ps, provisions of Magna 
 
 Charta concerning, 1179, 1183. 
 Warranty, French law of, 1134. 
 Warwick, the king-maker, 701. 
 Washington, George, 828. 
 Washing before prayers enjoined by 
 
 the Koran, 166. 
 Wealth, distribution of, in England, 
 
 777>- 
 Wealth, effects of transmission of. 
 
 by inheritance, 968. 
 Wealth, unearned, 38. 
 Wedgwood potteries, 755. 
 Westphalia, treaty of, 542. 
 
 Weregeld, penalty for killing an- 
 other, 656, 
 
 Widows, Hindoo, forbidden to marry 
 again, 1026. 
 
 Widowers, Hindoo, allow^ed to marry 
 again, 1026. 
 
 Widowers, rights of, guaranteed by 
 Magna Charta, 1180. 
 
 Wife, rights and obligations of, un- 
 der French Code, 11 16. 
 
 Wife, rights and obligations of, un- 
 der Code of Manu, 1049. 
 
 William of Normandy, conqueror of 
 England, 575, 673. 
 
 William IV of England, 759. 
 
 William and Mary of England, 734, 
 739. 
 
 William and Mary of England, char- 
 ter of Mass. issued by, 804. 
 
 Williams, Roger, banishment of, 795. 
 
 Wills, French law of, 1124. 
 
 Wills, German law of, 1174. 
 
 Wills, Roman law of, ic^o. 
 
 Wine-sellers in Babylon, liabilities of, 
 997- 
 
 Witan, Saxon council, 661. 
 
 Witchcraft, Burmese law concerning, 
 196. 
 
 Witchcraft, executions for in Eng- 
 land, 698. 
 
 Witnesses, rules of Code of Manu 
 concerning, 1039. 
 
 Wives, rights of, in China, 1097. 
 
 Women, status of in China, 242. 
 
 Women, Hindoo rules of dependence 
 of, 1025. 
 
 Women, . seclusion of Mohammedan, 
 162. 
 
 Woo How, Chinese empress, 211. 
 
 Written language, invention of, 924. 
 
 Wu Wang, Chinese emperor, 206. 
 
 Yaghan Indians of Terra del Fuego, 
 
 80. 
 Yang keen, Chinese emperor, 210. 
 Yao, Chinese emperor, 204. 
 Year, the Chinese, 1090. 
 Yoritomo, Shogun of Japan, 255. 
 Yu, Chinese emperor, 205. 
 Yuma Indians, 94. 
 Yussef, King of Almoravids, 427. 
 
 Zemstvos, Russian assemblies, 396. 
 Zurich, city government of, ZZ'^- 
 Zwingli, Ulrich, 541. 
 
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